Controlling Bodies, Denying Identities

Summary

The
state should stay out of our underwear.

—
Vreer, Amsterdam, March 7, 2011

After
a while, you’re just done with it. You just want to live, just like
everybody else.

— Linda, Rotterdam, April 1, 2011

In 1985, the Netherlands was among the first European
nations to adopt legislation granting transgender people—individuals
whose gender identity differs from the sex assigned them at birth—legal
recognition of their gender identity, albeit under onerous legal conditions.

Over a quarter of a century later, the Netherlands has lost
its leading edge. Legislation that at the time represented a progressive
development is wholly out of step with current best practice and understandings
of the Netherlands’ obligations under international human rights law.

Most egregiously, Dutch law allows trans people to change
their gender on official documents only on condition that they have altered their
bodies through hormones and surgery, and that they are permanently and
irreversibly infertile.

These requirements routinely leave trans people with identity
documents that do not match their deeply felt gender identity, resulting in frequent
public humiliation, vulnerability to discrimination, and great difficulty
finding or holding a job. “Right now, you have to brace yourself at every
moment of your life, because you never know when will be the next time you have
to explain yourself,” one woman said.

The conditions imposed by article 1:28 of the Civil Code violate
transgender people’s rights to personal autonomy and physical integrity
and deny transgender people the ability to define their own gender identity,
which the European Court of Human Rights has deemed to be “one of the
most basic essentials of self-determination.”

This report details the impact the current Dutch law has on
the daily life of transgender people and analyzes the existing Dutch legal
framework from a human rights perspective.

Human Rights Watch calls upon the Netherlands to amend
article 1:28 of the Civil Code to respect transgender people’s right to
personal autonomy and physical integrity. It should separate medical and legal
questions for transgender people. Legal recognition of the gender identity of
transgender people should not be made conditional on any form of medical
intervention.

An Outdated Law and Its Impact on
Transgender People

Most people’s internal, deeply felt sense of belonging
to a particular gender corresponds to the sex they were assigned at birth on
the basis of their external sex organs. For transgender people, or trans
people, this is not the case: their gender identity differs from their birth
sex.

The transgender community is diverse, and precisely how
their gender identity differs from their sex assigned at birth differs from
person to person. Transsexual people want to live and be accepted as members of
the gender opposite to the sex they were assigned at birth. Besides transsexual
people, the trans community also includes gender variant people whose gender
identity is neither male nor female: it may be somewhere on the spectrum
between male and female, or it may not be susceptible at all to definition in
terms of the male/female dichotomy.

Article 1:28 of the Civil Code impacts different groups of
transgender people in the Netherlands in different ways.

According to the law, transsexual people who wish to undergo
surgery to alter their bodies can change their papers only after they have
completed the lengthy medical trajectory. It takes years, not weeks or months,
before people meet the conditions imposed by article 1:28. During that time,
they must live with identity documents that do not match their gender identity,
and thus deny a fundamental aspect of their personality. “People are left
dangling in between two worlds for far longer than is necessary,” Jochem
Verdonk, the chairman of the Transman Foundation, a Dutch advocacy
organization, told us. “It is needlessly traumatizing for people who are
already very vulnerable.”

For trans people who do not want surgery, and who will
therefore never be able to change their gender markers under the current
legislation, these obstacles last a lifetime. A popular shorthand phrase for
trans people refers to people who are “trapped in the wrong bodies.”
But trans people who do not want surgery are not trapped in the wrong bodies,
since they have in fact decided to accept their bodies as they are, they are
trapped by the law. Such individuals are confronted on a daily basis by a gulf
between their deeply felt identity and what their documents say, made manifest
in countless fraught interactions with government agencies, employers, and
often, as explained below, even complete strangers. The pressure on trans
people who find themselves in this situation is enormous. A woman who does not
want surgery and who has suffered countless indignities when applying for jobs
because her papers say she is male, told Human Rights Watch: “I have even
thought about having the operations after all, just to be done with all the
crap. But if I come to regret the operations later on, I’ll be deeply
unhappy for the rest of my life.”

Finally, transgender people who are not transsexual but
whose gender identity differs in other ways from the sex they were assigned at
birth do not currently have any means of obtaining legal recognition of their
gender identity. For these gender variant people, neither a male nor a female
gender marker accurately reflects their gender identity, but in 2007 the Dutch
Supreme Court (Hoge
Raad) ruled that neither article 1:28 nor any other provision of the
Civil Code allows for such people to have the gender marker on their birth
certificate removed. Even if as a stopgap measure some gender variant people
might prefer to change to the opposite gender marker because it may be a closer
approximation to their gender identity, the only avenue open to them would be
through the surgery and irreversible infertility requirements stipulated in
article 1:28 of the Civil Code.

Registering
Gender

The information about people’s gender is contained in
the Dutch register of civil status records (Gemeentelijke
Basisadministratie van Persoonsgegevens, known by the abbreviation GBA),
along with other personal data derived from people’s birth certificates
such as their names and date of birth. Several hundred agencies and
institutions that require personal data to discharge their public duties have
access to GBA data, including the police, the internal revenue service (belastingdienst) and
pension funds. A wide array of other actors are under a legal obligation to
ensure that their own records are in line with GBA data, including banks and
insurance companies, employers and educational institutions.

This system of interconnected recordkeeping means that
information about people’s gender as registered in the GBA is ubiquitous.
For trans people who are unable to change their gender marker on their birth
certificate, and hence their registered gender in the GBA, the inevitable
consequence is that the incongruity between their sex assigned at birth and
their gender identity pursues them in all aspects of their lives. Official
correspondence is invariably addressed wrongly, to Mr. X instead of Mrs. X, or
Mrs. Y instead of Mr. Y. Trans people also often have no choice but to put
their signature under forms that are based on their birth sex, or to tick the
wrong box on the many forms that ask one to identify one’s gender as well
as one’s name and other personal data: to do otherwise might leave them
open to accusations of fraud. To many trans people, this deliberate act of
denying their own gender identity feels like self-betrayal. “I
can’t bear to tick that box with ‘M’ myself,” one woman
told Human Rights Watch. “Everything in me resists that. That’s not
who I am.
I’m not just called
Sabrina, I am
Sabrina.”

Even more distressing are the many occasions when, as a
direct result of having a wrong gender marker in their identity documents,
trans people have no option but to reveal to perfect strangers, often within
earshot of a larger audience of yet more strangers, details of one of the most
intimate aspects of their private lives—that they are transgender. Trans
people emphasized that the examples they gave to Human Rights Watch were not
exceptions, but typical of situations they face daily. A woman who lives with
male identity papers said, “Each time that information derived from the
GBA is called up by some official is hurtful, because each time I’m met
with a raised eyebrow, each time I have to provide an explanation, over and
over and over again.”

A man told Human Rights Watch, “You have no option,
you’re forced, always, to provide an explanation. Sometimes I’m in
the right mood for that, but not always. You feel diminished as a man whenever
you need to explain that you are in fact a man. Sex registration is like
administrative violence that is condoned by the state.” A woman said of
such situations where she was challenged about her identity: “At a
stroke, it’s like they pull the rug from underneath you. It leaves me
very, very tired, you’re always having to explain. After a while,
you’re just done with it. You just want to live, just like everybody
else.”

A further problem that trans people in the Netherlands face
relates to the ability to choose a first name that suits their gender identity.
For trans people who do not happen to have one of the few first names that
society considers to be gender neutral, the ability to choose a new first name
is as important as changing the gender marker in civil status records. Changes
of first names are governed by article 1:4 of the Civil Code. While article 1:4
does not explicitly provide that first names must correspond to a
person’s registered gender, it does state that first names may not be
“inappropriate” (ongepast),
without specifying what renders a name inappropriate. However, a number of
trans people who did not meet the requirements of article 1:28 of the Civil
Code told Human Rights Watch that the courts had denied their applications to
change their first names, on the grounds that their chosen first names were
deemed to be “inappropriate” within the meaning of article 1:4 of
the Civil Code, since they did not correspond to the person’s registered
gender. One man told Human Rights Watch:

It
is up to the judge to decide whether a first name is appropriate. In my case,
this particular judge decided that for me it was inappropriate to have a male
first name, because in the eyes of the law I’m still female. I
can’t change my registered gender because I don’t yet meet the
infertility requirement, and I can’t change my name because I can’t
change my registered gender.

In deciding name change applications, some judges evidently
accord primacy to people’s registered gender, ignoring the social reality
of the people in question and their own expressly stated wish to adopt a
forename that suits their gender identity. A woman said:

The court rejected my application: it argued that my chosen
name was inappropriate for me because I’m still registered as a man.
There was no court hearing, my application was decided on the papers. So the
judge never had an opportunity to see me, to see that I am a woman.

In these instances, judges in effect make name changes for
trans people conditional on the applicants having had surgery and being
infertile, requirements that are not in fact provided by law.

A New Law

States have legitimate
reasons for registering people’s sex at birth, and hence for regulating
the manner in which people can change their gender marker in civil status
records later in life. Sex is one characteristic used to identify people and
government bodies such as national security agencies may need to have access to
this information to carry out their duties. In some contexts the state has
specific, positive obligations to protect people from risk, for example, by
mandating separate facilities, such as prisons, for men and women; or it may
need to use data segregated by gender to further policies on equality or inform
gender-specific health policies such as those targeting maternal health and
prostate cancer. Countries with conscription armies might only call up men for
military duty.

But while the state may have a legitimate interest in
regulating the manner in which people can change their legally recognized gender,
it should do so in ways that do not violate an individual’s human rights.
However, the two conditions imposed by article 1:28 of the Civil Code for
recognition of people’s gender identity violate trans people’s
right to personal autonomy and physical integrity. The Dutch Constitution
protects these rights, subject to restrictions
imposed by law, as do several international human rights instruments
ratified by the Netherlands, including the International Covenant on Civil and
Political Rights and the European Convention on Human Rights. Significantly, in
a January 2011 decision the German Constitutional
Court struck down as unconstitutional two conditions in German law similar to
those in Dutch law, on the grounds that they violated the right to physical
integrity.

As it stands, article 1:28 conflates medical and legal
questions. The use of hormones and surgery should be guided exclusively by
considerations relating to the individual’s health. Article 1:28 of the
Civil Code—which predicates legal recognition of gender identity
conditional on hormone therapy, surgery, and permanent infertility—is
incompatible with this principle.

For individual trans people, hormones and surgery may be
necessary to restore them to the best possible state of health. In the
Netherlands this is reflected by the fact that hormones and most forms of
surgery for trans people are covered by health insurance policies. However, as
the Standards of Care developed by the World Professional Association for
Transgender Health affirm, not all transgender people need hormones and
surgery: decisions whether to use hormones or to undergo surgery should be left
to individual transgender people and the medical professionals assisting them.

Making hormones and surgery leading to infertility a
mandatory requirement for recognizing trans people’s gender identity
ignores the individual circumstances of trans people, and leaves some trans
people with the impossible choice between having surgery so as to have access
to correct identity documents, or not having surgery and living with the wrong
documents. As a woman told Human Rights Watch:

I am lucky with my body, for me it’s possible to live
as a woman without surgery and without hormones. Why then should I subject
myself to a surgeon’s scalpel? Why take hormones for the rest of my life,
when I don’t know what the side effects might be? …. It should be
up to each individual to decide what solution they adopt. To me, it’s
unacceptable that if I want to change the M in my passport into an F, the state
decides for me how I must alter parts of my body.

Article 1:28 also places
medical professionals in a difficult position in terms of medical ethics.
Professional codes of ethics for physicians require that physicians act in the
patient’s best interest when providing medical care. However, the Civil
Code places medical professionals in the invidious position of gatekeepers who
are required to act to protect the supposed interests of the state, as opposed
to the interest of their patients: no transgender person can obtain legal
recognition of their gender identity without a statement from medical
professionals certifying that they meet the conditions of article 1:28,
including irreversible infertility. For trans people for whom surgery is
medically unnecessary and thus inappropriate, medical professionals know that without
surgery leading to irreversible infertility they cannot provide the required
statements to the court. This cuts off their patients from the only access
route to legal recognition of their gender identity, which is in most cases
essential to safeguard the welfare of the trans person in question.

Five
Proposed Amendments

Both the previous and the current Dutch governments have
acknowledged the need to amend article 1:28 of the Civil Code. Since the
previous government failed to act on its commitment to present the necessary
draft legislation to parliament, it has fallen to the current government to
bring article 1:28 into line with the state’s obligations under
international human rights law. The government committed itself to making draft
legislation available for consultation before the summer of 2011, but has yet
to do so.

Human Rights Watch calls upon the Netherlands to amend
article 1:28 of the Civil Code to respect transgender people’s right to
personal autonomy and physical integrity. It should separate medical and legal
questions for transgender people. Legal recognition of the gender identity of
transgender people should not be made conditional on any form of medical intervention.

In particular, Human Rights Watch urges the Netherlands to
amend the existing legal framework for the legal recognition of gender identity
in five ways.

First, parliament should abolish the condition of bodily
adaptation by means of hormones and surgery and the condition of irreversible
infertility.

Second, the Netherlands should reconsider the process
provided for in article 1:28 of the Civil Code. The existing process makes
legal recognition of trans people’s gender identity dependent on trans
people submitting to the court a statement signed by certified experts
confirming their enduring conviction that they belong to the gender opposite to
that assigned at birth. Best practice, as detailed below, would be instead to
afford primacy to trans people’s own self-defined gender identity.

Third, a new law on legal recognition of gender identity
should safeguard the right of transgender people to choose a forename that
suits their gender identity. Applications to change one’s forenames are
governed by article 1:4 of the Civil Code, which provides that forenames may
not be “inappropriate.” Human Rights Watch calls on the Dutch
government to take the necessary steps to ensure that the courts, in applying
article 1:4, do not import a requirement into the Civil Code that first names
correspond to people’s registered gender.

Fourth, a new legal framework for the legal recognition of
trans people’s gender identity should allow for the fact that it may be
in the best interest of some transgender children to change their legal gender
before they reach the age of adulthood. The inclusion of a minimum age in such
a legal framework should be avoided; instead, the individual circumstances of
each child should determine whether it is in their best interest to change their
legal gender. A new legal framework for legal recognition of gender identity in
relation to transgender children should be informed by the Netherlands’
obligations under the Convention on the Rights of the Child, including allowing
the transgender child to give their opinion on the need to change their legal
gender, with increasing weight given to that opinion as the child grows closer
to adulthood.

Fifth, the existing legal framework for the legal
recognition of gender identity does not recognize the existence of gender
variant people whose gender identity is neither exclusively female nor
exclusively male. Human Rights Watch does not contend that international human
rights law has, as yet, evolved in such a manner as to impose a positive
obligation on the state to give legal recognition to gender identities other
than male or female. Nevertheless, Human Rights Watch calls upon the
Netherlands to explore ways to accommodate the gender identity of gender
variant people. Specific suggestions are detailed below.

Methodology

This report is based on research conducted by Human Rights
Watch in the Netherlands from March 14 to April 15, 2011. Human Rights Watch
conducted 28 in-depth interviews with trans people, of which 12 identified as
men, 10 identified as women, and 6 identified as gender variant. Of these 28
people, some had had SRS; some had had some forms of surgery but were still
waiting for other operations; some were waiting for the first operation; and
others were living in their desired gender role without intending to have
surgery. Two of the interviewees were under age 18.

Where they have given permission to do so,
interviewees’ names are provided in the report. Other interviewees chose
to remain anonymous: their full names and other identifying information have
been withheld to protect their privacy. All interviews were conducted in Dutch.

Transgender interviewees were identified largely with the
assistance of the Transgender Netwerk Nederland, a lobby and advocacy
organization working to promote the rights of transgender people in the
Netherlands, and Transvisie, a Dutch foundation providing counseling and
support to transgender people.

Human Rights Watch also conducted interviews with Dr. M. van
Trotsenburg, director of the Knowledge and Care Center for Gender Dysphoria at
the medical center of the Free University in Amsterdam (VUmc), and with Prof.
Dr. W. C. M. Weijmar Schultz and A. Pascal, director and coordinator
respectively of the Gender Dysphoria Center at the Groningen University Hospital
(UMCG).

Human Rights Watch also interviewed a senior legal officer
at the Ministry of Security and Justice, as well as NGO representatives,
lawyers and academics. Our interviewees included directors and staff of the
Transgender Netwerk Nederland, Transvisie and the Stichting
Patientenorganisatie Transvisie (POST).

All documents cited in this
report are either publicly available or on file with Human Rights Watch.

Recommendations

To
the Government of the Netherlands

On Legal Recognition of Gender Identity

Amend article 1:28 of the Civil Code in such
a way that transgender people can apply to have the gender marker on their
birth certificate changed without having to satisfy any medical conditions. In
particular, abolish the current conditions of sex reassignment surgery and
irreversible infertility.

Ensure that legal recognition of transgender
people’s gender identity applies to all aspects of people’s lives.
In particular, where transgender people have children, their parental relation
with their child should be in line with trans people’s gender identity.
Thus a trans man who has a child should be recognized as the father of that
child, and a trans woman having a child should be recognized as the mother of
that child.

In light of the Netherlands’ commitment
to the Yogyakarta Principles, explore avenues to amend article 1:28 of the
Civil Code so that it recognizes the primacy of self-identification advanced by
principle 3 of the Yogyakarta Principles. In particular, explore options for
enabling transgender people to change the gender marker on their birth
certificate without having to provide expert statements, relying instead on
transgender people’s testimony about their own self-identified gender
identity.

If legal recognition of transgender people’s
gender identity is made conditional on expert statements being provided to the
court, ensure that there is sufficient capacity on the part of the designated
experts to provide the required documents within a reasonable time.

Ensure that transgender people are able to
choose a first name that suits their gender identity, whether or not they have
applied to change the gender marker on their birth certificate. To this end,
provide clarification to the courts on the meaning of the term
“inappropriate” in article 1:4 of the Civil Code, to ensure that
judges do not refuse applications for name changes on the basis that
transgender people’s chosen first names are deemed to be inappropriate
for their gender.

Recognize that it may in the best interest
of some transgender children to change their legal gender before the age of
adulthood at 18, and ensure that transgender children are not excluded from the
possibility of applying for legal recognition of their gender identity and
changing their first names. Procedures for the consideration of transgender
children’s applications should include a mechanism for the transgender
child to give his or her opinion on the need to change his or her legal gender.
The child’s freely expressed opinion must be given due weight. In line
with the Netherlands’ obligation under the Convention on the Rights of
the Child, the relevant procedures must be designed in such a way as to
acknowledge that as children grow and acquire capacities, they are entitled to
an increasing level of responsibility for the regulation of matters affecting
them.

Explore ways to grant legal recognition to
the gender identity of transgender people whose gender identity is neither male
nor female, including removing the gender marker on the identity documents of
gender variant people.

Ensure that information about people’s
gender as contained in the register of civil status records (Gemeentelijke
Basisadministratie van Persoonsgegevens, or GBA) is only made available
to institutions, organizations and businesses in situations where this
information is relevant.

Encourage institutions, organizations and
businesses to develop forms for recording personal information that allow
people not to specify their gender.

In developing and implementing the measures
referred to above, involve and consult
transgender persons and organizations representing transgender people. Ensure
that transgender children are included in these consultation processes.

On Nondiscrimination and Equality

Include a provision in the General Law on
Equal Treatment (Algemene
Wet Gelijke Behandeling) specifying that “discrimination on the
grounds of sex” also means “discrimination on the grounds of gender
identity and on the grounds of gender expression.”

In consultation with transgender people and
organizations representing them, develop and implement policies to combat
discrimination against and exclusion of transgender people, including in
relation to employment.

In consultation with transgender people and
organizations representing them, develop education
and training programmes and awareness-raising campaigns to promote respect for
the human rights of transgender people.

Collect and analyze data on
the human rights situation of transgender persons, including the discrimination
and intolerance they encounter, with due regard to the right to privacy of the
persons concerned.

On Medical Assistance and Psychological Support for
Transgender People

Ensure that transgender people have access
to the medical and psychological assistance and support they require, and that
such support and assistance is available to transgender individuals within a
reasonable time.

In consultation with transgender people, the
organizations representing them and the two gender teams at the university hospitals
at the Free University in Amsterdam and the University of Groningen, ensure
that all medical interventions deemed to be necessary under the sex
reassignment protocols for transgender people are covered by health insurance
schemes.

Ensure that training is available to health service professionals, including
psychologists, psychiatrists and general practitioners, as well as social
workers, with regard to the specific needs and rights of transgender persons
and the requirement to respect their dignity.

To
the Gender Teams at the Free University Hospital in Amsterdam and the Groningen
University Hospital

Advocate for the rights of transgender
people, including legal recognition of their gender identity regardless of
whether they have had hormone treatment or surgery, in line with the Standards
of Care developed by the World Professional Association for Transgender Health.

To
Council for the Judiciary (Raad voor de Rechtspraak) and the Dutch Association for the Judiciary
(Nederlandse Vereniging voor Rechtspraak)

Work to
ensure that the term “inappropriate” as used in article 1:4 of the
Civil Code is not interpreted to deny transgender people legal recognition of their
chosen first names.

To
Health Insurance Companies

In consultation with transgender people, the
organizations representing them and the gender teams at the Free University in
Amsterdam and the University of Groningen, ensure that all medical
interventions deemed to be necessary under the sex reassignment protocols for
transgender people are covered by health insurance schemes.

To
the American Psychiatric Association

Ensure that the diagnosis of gender
dysphoria in the fifth edition of the Diagnostic and Statistical Manual of
Mental Disorders (DSM-5) does not pathologize trans identities.

A Note on Terminology

Terminology relating to
transgender issues is still fluid and subject to debate. This report uses the
following definitions:

We use gender
identity to refer to a person's internal, deeply felt sense of being
male or female, or something other than or in between male and female. Gender expression refers
to the external characteristics and behaviors which societies define as
“masculine” or “feminine”—including such
attributes as dress, appearance, mannerisms, speech patterns, and social
behavior.

Transgender
people,ortrans
people, are people whose gender identity or gender expression
differs from the sex they were assigned at birth on the basis of their bodily
characteristics. Understanding the experiences of trans people means
recognizing how gender is not the same as biological sex. Biological sex is the
classification of bodies as male or female on the basis of biological factors,
including hormones, chromosomes, and sex organs. Gender describes the social
and cultural meanings attached to ideas of “masculinity” and
“femininity.”

Intersex
people are people whose bodily characteristics (genetic, hormonal or
anatomical) are such that their biological sex cannot readily be determined to
be male or female. The phenomenon of intersexuality is different from the
existence of transgender people (whose biological sex is unambiguous, but whose
gender identity is different from their biological sex). However, where parents
or others decide to raise an intersex child as belonging to a particular gender
(or even subject the child to surgery to modify its body so as to correspond
more closely to society’s ideas of male and female bodies), the intersex
child may grow up to be transgender if its own gender identity does not
correspond with the gender identity imposed on the child.

The transgender community is diverse. It
includes transsexual
people, whose gender identity is opposite to the sex they were
assigned at birth. Atrans
womanrefers to someone who was born with a male body but who has a
female gender identity; a trans
man is someone born with a female body but with a male gender
identity. The term transsexual people is sometimes
used to refer exclusively to people who wish to alter their bodies physically,
or who have already done so. (This usage in turn gives rise to the problematic
terms “pre-operative” and “post-operative” transsexual
people, which seem to set greater store by people’s physical appearance
than their gender identity.) However, this report uses the term
transsexual people to refer to people who have a persistent desire to live and
be accepted as members of the opposite sex. For some transsexual people, this
desire may be accompanied by a sense of discomfort with, or inappropriateness of,
one's anatomic sex, and a wish to make his or her body as congruent as possible
with their gender identity through surgery and hormone therapy. For others, the
desire to live and be accepted as a member of the opposite sex is not
accompanied by a wish to have hormone therapy and/or have sex reassignment
surgery (SRS).[*]

It should be noted that while some
transsexual people use the identity labelstrans
woman and trans
man to signify that they are women and men respectively while still affirming their
history as males and females respectively, other trans people experience these
labels as an attempt to deny that they are “real” women or
“real” men; they prefer to be referred to simply as women or men in
accordance with their gender identity. This report follows the preferences of
individual transgendered people interviewed in the course of the research.

Not all transgender people are either trans
women or trans men: the trans community also includes other gender variant people (who sometimes use the term genderqueersto refer to themselves), whose gender identity is neither exclusively male
nor exclusively female, but in between or beyond genders. Gender variant people
challenge all notions that insist on a gender
dichotomy according to which there are only two genders, male and
female. The trans community also includes transvestites/cross-dressers (whose
gender identity corresponds with their sex assigned at birth but who dress at
times in clothes typical of the opposite sex) and transgenderists (whose gender
identity has both male and female elements).

Gender
Identity Disorderis a diagnosis contained in the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV)[†] and in the World Health Organization’s International Classification of
Diseases (ICD-10). The DSM and ICD are both in the process of being revised.
The current proposal for the DSM-V is to replace gender identity disorder with gender dysphoria.
The proposal would retain the classification of gender dysphoria as a mental
disorder, something which many trans people strongly contest.

Sex
Reassignment Surgery (SRS)refers to surgical interventions to change the body so as
to resemble a body of the opposite sex as closely as possible. SRS is usually
preceded by a minimum period of hormone
therapyto induce secondary sex characteristics of the desired
sex.

I.
Recognition of Gender Identity:
The Dutch Legal Framework

Being
Transgender in the Netherlands

The Dutch government
estimates the number of transgender people in the Netherlands between 30,000
and 100,000.[3] Transgender people face a complex set of
interrelated problems. Relations with family, friends, and colleagues may come
under strain when transgender people seek acceptance of their gender identity,
which in turn may lead to social isolation. They may struggle to obtain
appropriate and timely psychological or medical assistance, or they may not be
able to pay for the cost of certain medical procedures that are not covered by
their insurance. They may experience discrimination at their workplace, or when
they apply for jobs, or in accessing services. They may also encounter
harassment, aggression, and even physical violence as a result of their gender
expression.[4]

Social and economic indicators for transgender people
provide some insight into the combined impact of this situation. A 2009 study
focusing on transgender people in Belgium found that 22 percent of transgender
people had attempted at least once to commit suicide, a figure that Dutch
transgender advocacy groups hold to be indicative for the Netherlands also.[5]
A 2010 study in the Netherlands found that for nearly half of all transgender
people who lost their jobs for reasons other than the regular expiry of their
contracts, their transgender identity played a role.[6]
Of transgender people in employment, 77 percent of trans women and 66 percent
of trans men surveyed had had at least one negative experience with their
colleagues in the last six months on account of their gender expression,
ranging from gossip and insulting jokes to social exclusion, threats, and
sexual intimidation.[7]
Transgender people are far more likely to be unemployed than the rest of the
population.[8]

This report focuses on one particular problem faced by
transgender people in the Netherlands, namely the exceedingly restrictive
framework for obtaining legal recognition of their gender identity. This does
not mean that Human Rights Watch expects trans people’s other
difficulties to be solved once this particular issue has been addressed, or
that Human Rights Watch deems this problem to be of greater significance for
every transgender person than any of the other problems they may encounter.
However, the current framework for legal recognition of the gender identity of
trans people does amount to a particularly egregious violation of their human
rights. It also is a problem that affects all trans people in the Netherlands
without exception. Finally, a human-rights-compliant framework for legal
recognition of gender identity is a necessary, if not a sufficient, step
towards addressing other abuses of the human rights of transgender people,
notably various forms of discrimination.

The
Netherlands’ Claim to being a Role Model on LGBT Rights

As will be discussed in more detail in chapter IV of this
report, the Netherlands is far from the only country with a legal framework for
recognition of gender identity that violates the human rights of transgender
people. This report focuses on the Netherlands for two reasons. First, on a
number of occasions the Dutch government has acknowledged the need to amend the
Civil Code in relation to the recognition of gender identity, but without then
taking the necessary steps to translate these expressions of political will
into a new law. The first such promise was made in June 2009, when the then
Minister of Justice stated that a draft law to this effect would be presented
for consultation in the fall of that year. However, no such bill had been
presented by year’s end. Following the 2010 elections, the government
program published by the new coalition government stated: “The Cabinet
guarantees the emancipation of lesbian women, homosexual men, bisexual people
and transgender people, and shall develop a policy for this purpose.”[9]
This was followed by a promise in March 2011 by the State Secretary for
Security and Justice to present a draft law on legal recognition of the gender
identity of transsexual people before the summer of 2011.[10]
This specific commitment was repeated in the 2011-2015 policy document on
emancipation presented by the government to parliament on April 8, 2011,
setting out the main priorities for policy initiatives for the emancipation of
women and of homosexual and transgender citizens.[11]

Secondly, the Dutch government takes pride in the fact that
the Netherlands was the first country to legalize same-sex marriage, and has
taken the initiative in safeguarding the rights of homosexual people both in
the Netherlands and abroad. Regrettably, in the minds of policymakers the
pioneering role the Netherlands has played in relation to same-sex marriage has
given rise to the unfounded assumption that the Netherlands is equally in the
vanguard in relation to the protection of the rights of trans people, and that
the Netherlands should now work towards strengthening the protection of the
rights of homosexual and transgender people abroad. For example, the government’s
2011-2015 policy document on emancipation states:

No international treaty exists as yet for the rights and
safety of gay, lesbian, bisexual and transgender people. By becoming the first
country in the world to legalize same-sex marriage, the Netherlands has become
an important role model in the world. The cabinet wants to use that position,
together with other like-minded countries, to ensure that the rights and safety
of homosexual and transgender people are better protected internationally.[12]

While welcoming the willingness of the Dutch government to
take a lead role internationally on these important issues, with this report
Human Rights Watch seeks to focus attention on the urgent need to bring the
Netherlands’ own laws into line with its obligations under international
human rights law.

Article
28 of the Civil Code: Conditions for Recognition of Gender Identity

Under Dutch law, a child’s sex
must be registered on their birth certificate, as either female (F) or male
(M), on the basis of the child’s external reproductive organs.[13] If no sex is registered, the birth certificate has no legal
validity.[14] The only exception to this rule is the situation of intersex
children, whose biological sex is ambiguous. When an intersex child is
born a temporary birth certificate must be prepared, which must be replaced
within three months with a definitive certificate stating the child’s
sex. If three months after the birth it is still impossible to determine the
child’s sex, a definitive birth certificate must be drawn up which states
that it has been impossible to determine whether the child is male or female.[15]
As far as is known, no such birth certificate has ever been drawn up.[16]

For transgender people, the
problem is not that their biological sex cannot be determined, but that their
gender identity does not accord with the sex they were assigned at birth.Accordingly, for transsexual people, whose gender
identity is opposite to the sex they were assigned at birth, legal recognition
of their gender identity has two aspects: the amendment of civil status records
to change their registered sex to the sex corresponding to their gender
identity, and, if they do not happen to have a forename that is generally
considered to be gender neutral, the right to choose a new forename (or
forenames) that suits their gender identity. For gender variant people whose
gender identity is neither male nor female, legal recognition of their gender
identity entails an amendment of their civil status records to reflect this
fact, plus the right to choose an appropriate forename. The situation of gender
variant people is discussed in more detail in chapter V.

Transsexual people in the Netherlands have been able to
obtain legal recognition of their gender identity under the terms described above
since 1985, when a law was adopted to amend the Civil Code for this purpose.[17]
Article 1:28 of the Civil Code allows transsexual people to request the court
to order their birth certificate to be amended so as to bring their registered
sex into line with their gender identity, and where necessary to register new
first names.[18]
Other civil status records are then updated on the basis of the amended birth
certificate, enabling the person in question to apply for new identity
documents that are in line with their gender identity.[19]

However, the conditions imposed by the existing law for
legal recognition of transsexual people’s gender identity are
extraordinarily burdensome. First, they must show that their body has been
altered so as to resemble a body of the opposite sex by means of hormone
therapy and sex reassignment surgery (SRS). This requirement is subject to the
important qualification that physical adaptation is necessary only to the
extent that this is medically and psychologically possible and justified.
Examples of circumstances where the requirement of bodily adaptation does not
need to be met are pre-existing medical conditions that render surgery too
risky, or the person in question having a great fear of operations.[20]

Second, transsexual people must prove that they have become
irreversibly infertile: trans women must never again be able to beget children
and trans men must never again be able to bear children. This is a separate
requirement from the first requirement. Moreover, unlike the first requirement
this second requirement is absolute: while the first requirement of bodily
alteration may be lifted in whole or in part when there are medical or
psychological contra-indications for surgery, no such circumstances can be
relied upon in relation to the second requirement of irreversible infertility.

This second requirement is often referred to as the
“sterilization requirement,” but this label does not in fact quite
capture the drastic nature of the requirement: ordinary sterilization
techniques used for family planning purposes do not suffice, since in principle
these are reversible. Hormone treatment alone is also insufficient: while it
often leads to infertility, it does not necessarily result in permanent and
irreversible infertility. In practice what is required is the removal of the
ovaries (trans men) or testes (trans women), unless there are, for example,
pre-existing medical conditions that have resulted in permanent infertility.[21]

The requirement of bodily adaptation by means of SRS was included
in article 1:28 of the Civil Code on the grounds that it was taken to be the
only way to protect the interests of public order. Registering people’s
sex at birth was deemed to be necessary to serve those interests, and changing
someone’s registered sex later in life would have important consequences
for the legal relations between individuals (for example, their relation as
husbands and wives, or as mothers and fathers) and for people’s
participation in society. It was argued that, consequently, even the most
unwavering conviction to belong to the other sex could not in itself form the
basis in law for changing someone’s registered sex.[22]
SRS was seen as a necessary requirement to guarantee legal certainty and to
preclude abuses of the law.[23]

The reason provided by the legislature for the infertility
requirement was that it was necessary to protect the interest of the unborn
child by ruling out situations where a person legally registered as a man would
give birth to a child, or where a person legally registered as a woman would
father a child.[24]
This report will argue that the conditions of mandatory surgery and
irreversible infertility are an unjustified interference with trans
people’s rights to personal autonomy and physical integrity. Moreover, the
manner in which the law is applied in practice, and the changes in Dutch family
law since article 1:28 of the Civil Code came into force in 1985, demonstrate
that neither requirement is in fact necessary to protect the interests of
public order.

Court
Procedures

Trans people who meet the
legal requirements can instruct a lawyer to submit an application to one of the
19 district courts in the Netherlands for an amendment of their birth
certificate. Such applications must be accompanied by an expert statement
comprising three elements: the statement must confirm that the person in
question is convinced that he or she belongs to the opposite gender and that in
the opinion of the experts this conviction is durable; that the person’s
body has been physically adapted (or, where this has not been done, on what
medical and/or psychological grounds operations have been ruled out); and that
the person is irreversibly infertile. Such statements can only be signed by
experts who have been authorized to do so: these include registered
psychologists, psychiatrists, surgeons and medical doctors specialized in
internal medicine.[25]

Once an application has been made, the court decides whether
a court hearing must be held; most applications are decided on the papers and
without a court hearing, normally within one to two months after the
application is made. Even if the court grants the request in full, the normal
3-month period for appeals to be lodged is adhered to: only after the expiry of
these three months is the applicant’s birth certificate amended as per
the court’s decision.[26]

The costs of the legal procedure, including the court costs
(griffierecht)
and the lawyer’s fee, vary from about €800 to about €1,100.
Applicants may qualify for legal aid, depending on their level of income.

Sex Reassignment Surgery

The phrase sex reassignment surgery (SRS) is somewhat
deceptive. It conjures up the image of one straightforward surgical procedure
leading to the desired result, namely a body whose appearance approaches a body
of the opposite sex as much as possible. The reality is more complex. For both
trans men and trans women, SRS involves major surgery, requiring considerable
recovery time. Moreover, these operations carry significant risks of
complications, which may necessitate further surgery.[27]
For trans men in particular, SRS involves a number of separate operations.

In the Netherlands, two specialist gender teams provide
medical assistance to trans people. The gender team at the university hospital
of the Free University in Amsterdam (Vrije
Universiteit medisch centrum, VUmc) deals with an estimated 85 percent
of the caseload: annually it receives 300 requests for assistance from adults,
and 100 from children. The gender team at Groningen University Hospital (Universitair Medisch Centrum
Groningen, UMCG) assists a further 5 percent of the annual caseload,
while an estimated 10 percent of trans people seek assistance outside the recognized
gender teams.[28]

Both gender teams work on the basis of protocols grounded in
the Standards of Care for Gender Identity Disorders developed by the World
Professional Association for Transgender Health.[29]
These Standards of Care are based on the diagnosis of gender identity disorder
(GID) as contained in the American Psychiatric Association’s Diagnostic
and Statistical Manual of Mental Disorders (DSM-IV-TR) and the World Health
Organization’s International Classification of Diseases (ICD-10).[30]

Following an initial diagnostic phase of at least 6 months,
the assistance provided to people diagnosed with GID comprises three elements: “real-life
experience,” in which trans people live full-time in the desired gender
role; hormone therapy; and surgery. To be eligible for surgery, people must
have had hormone therapy for at least 12 months, during which time they must
also live in the desired gender role. While the effects of hormone therapy are
still partially reversible, the consequences of SRS are irreversible.[31]

The actual sex reassignment surgery itself comprises
different elements for trans men and trans women. Here a distinction must be
made between the range of interventions that are medically necessary to restore
a trans person to health, and the interventions required to meet the conditions
contained in article 1:28 of the Civil Code that one’s body has been
physically adapted as much as possible to a body of the opposite sex and that
one has become irreversibly infertile. To meet the requirements of article 1:28,
trans women require a genital operation, in which the penis and testes are
removed and a neo-vagina is created. Other operations that may be
medically indicated for individual trans women to assist feminization include
voice modification surgery, tracheal shave (reducing the thyroid cartilage to
create a less pronounced Adam’s apple), breast augmentation, and facial
feminization surgery.[32]
The courts do not deem any of these procedures necessary for trans women to
meet the conditions of article 1:28 of the Civil Code. Trans women must,
however, have had genital surgery before they are deemed eligible for legal
recognition of their female gender identity under article 1:28 of the Civil
Code.[33]

For trans men the first operation is usually a mastectomy to
remove the breasts, followed by an operation to remove the womb and ovaries
(sometimes these two operations can be carried out in one procedure). This may
be followed by the reconstruction of a functional male outer genital; here
trans men must choose between different operative techniques. Some trans men
opt for the construction of a penis (phalloplasty), which involves a number of
separate stages of surgery. Others opt for the construction of a so-called
microphallus (metoidioplasty), which in theory is a one-stage procedure. Yet
others choose not to have genital surgery, mostly because they deem the current
medical possibilities to be unsatisfactory. Other interventions to assist
masculinization for trans men include liposuction to reduce fat in hips, thighs
and buttocks.[34]

Given that surgical techniques are still insufficiently
developed to produce reliably satisfactory results for penis reconstruction,
many trans men decide against the genital operation, or postpone the operation
until such time that surgical techniques will have advanced. As Marc
(pseudonym) told Human Rights Watch:

I don’t want the third [i.e. genital] operation.
I’m not a patient, and I have no desire to live like a patient for 18
months or 2 years. That’s what it means in practice if you decide to have
the operation, I see it happening to [transsexual] friends. One friend had his
[genital] operation in 2007 and now, 4 years later, he needs yet another
follow-up operation. My sex is important to me, but my life is more important
still.[35]

In terms of legal recognition of their male gender identity
under article 1:28 of the Civil Code, trans men are not required to undergo a
reconstruction of the outer genital. As long as they have had surgery to remove
their breasts, womb and ovaries, they are deemed to fulfill the requirement
that their body has been adapted to that of the other sex as much as is
medically and psychologically possible and justified, even in the absence of a
genital operation.[36]

SRS
as a Medical Necessity

For many trans people, SRS is a medical necessity. The
Standards of Care of the World Professional Association for Transgender Health
state:

In persons diagnosed with transsexualism or profound GID
[gender identity disorder], sex reassignment surgery, along with hormone
therapy and real-life experience, is a treatment that has proven to be
effective. Such a therapeutic regimen, when prescribed or recommended by
qualified practitioners, is medically indicated and medically necessary. Sex
reassignment is not “experimental,” “investigational,”
“elective,” “cosmetic,” or optional in any meaningful
sense.[37]

The European Court of Human Rights has ruled that states
should provide transsexual people with the possibility of SRS, and as medically
necessary treatment it should be included with other such treatment provided by
the state and/or covered by health insurance.[38]
While not the focus of this report, Human Rights Watch notes that trans people
in the Netherlands face two obstacles in this regard. First, the two university
hospitals that provide specialist assistance to trans people do not have
sufficient capacity to respond to the demands for their services. As a
consequence, trans people face a waiting period of many months for each step in
the process, undermining the principle of meaningful access to SRS within a
reasonable time (see also Chapter II). Second, not all medical procedures that
are part of SRS are covered by insurance plans. The two gender teams and two
transgender organizations published recommendations in a 2007 policy paper to
address these concerns; to date these recommendations have not been implemented
by Dutch health insurers. As a result, some trans people have to pay themselves
for procedures that are deemed medically necessary by the gender teams.[39]

Surgery
Imposed by the State

Operations carried out on a healthy body are also a form
of physical violence.

— Marc (pseudonym),
Amsterdam, March 29, 2011

While the Standards of Care make clear that SRS has proven
to be an effective treatment for trans people, they also emphasize that whether
SRS is in fact a medical necessity depends on the individual and needs to be
assessed on a case-by-case basis:

After the diagnosis of GID is made the therapeutic approach
usually includes three elements or phases (sometimes labeled triadic therapy):
a real-life experience in the desired role, hormones of the desired gender, and
surgery to change the genitalia and other sex characteristics.… However,
the diagnosis of GID invites the consideration of a variety of therapeutic
options, only one of which is the complete therapeutic triad. Clinicians have
increasingly become aware that not all persons with gender identity disorders
need or want all three elements of triadic therapy.[40]

Human rights norms require that medical treatment should be
subject to the best interest of the individual, and tailored to the specific
needs and situation of the person in question.[41]
Professional codes of ethics for physicians also require that physicians
“shall act in the patient’s best interest when providing medical
care.”[42]
The Civil Code poses particular challenges for medical professionals in this
regard. Although the Standards of Care lay out carefully designed procedures to
decide whether irreversible changes to the body are indeed an appropriate form
of assistance for an individual diagnosed with gender identity disorder,[43]
article 1:28 of the Civil Code, which makes legal recognition of gender
identity conditional on SRS, is at variance with this approach.

Medical professionals are therefore in the invidious
position of gatekeepers who are required to act to protect the supposed
interests of the state, as opposed to the interest of their patients: no
transgender person can obtain legal recognition of their gender identity without
a statement from medical professionals certifying that the applicant has had
surgery (or is exempt from surgery) and has become permanently infertile, and
thus meets the conditions of article 1:28. Medical ethics dictate that
decisions whether to offer surgery to a trans person should be guided
exclusively by considerations of how to restore the person in question to the
highest attainable standard of health. However, in the case of trans people for
whom surgery is medically unnecessary and thus inappropriate, medical
professionals know that in the absence of surgery leading to irreversible
infertility, they are unable to provide the required statements to the court,
thus cutting off their patients from the only access route to legal recognition
of their gender identity, something which in most cases will itself be
essential to safeguard the welfare of the trans person in question.

Thomas Hammarberg, the commissioner
for human rights of the Council of Europe, observes about requirements such as
those contained in article 1:28 of the Dutch Civil Code:

In reality, this means that the state prescribes medical
treatment for legal purposes, a requirement which clearly runs against the
principles of human rights and human dignity.[44]

Human Rights Watch spoke with a number of trans people who
live full-time in their desired gender role, but who do not want SRS. Some take
hormones, others do not. Sabrina ter Horst said:

I have a very healthy body. My wish is to live as a woman,
and to be treated and accepted as a woman by others. I am lucky with my body,
for me it’s possible to live as a woman without surgery and without
hormones. Why then should I subject myself to a surgeon’s scalpel? Why
take hormones for the rest of my life, when I don’t know what the side
effects might be? People assume that the only solution is a medical one, and we
have elevated certain surgical procedures to “sex reassignment surgery.”
But even doctors can never create a woman’s body out of a man’s
body. When we talk about sex change operations, what we mean is operations that
change the external appearance of our bodies. But there are other ways to
change the appearance of your body, to conceal what I see as a few biological
mistakes of my body. My gender identity doesn’t match the configuration
between my legs. But does that mean I must go to the VU [university hospital]
or to Groningen [University Hospital]? Why is it of such overriding importance
to remove that biological mistake between my legs? It should be up to
each individual to decide what solution they adopt. To me, it’s
unacceptable that if I want to change the M in my passport into an F, the state
decides for me how I must alter parts of my body.[45]

Linda told Human Rights Watch:

Why should I let myself be mutilated because I want an F in
my passport? You must learn to accept your body. You can have a sex change
operation, but they cannot change your body into that of a woman, it is
impossible. They can create an artificial vagina, but you’re never going
to have the body of someone who was born as a woman. Why then should I have the
operations?[46]

A man who had a mastectomy but no other operations, and who
was thus unable to obtain male papers, said, “One way or another,
you’re violating people, either through operations, or by denying them
new papers.”[47]
Marc (pseudonym), whose decision to have his ovaries removed had been motivated
in part by the legal requirements for getting new identity documents, told us:

As far as I was concerned, those ovaries could have stayed
where they were; I was already more than 50 years old when I had the
operations, and my ovaries no longer did anything. But I’m a pragmatist,
and since there was a legal reason to have them removed, I had the operation.
There was also a medical reason, because you may be at a higher risk of getting
cancer if you don’t have them removed.

It is odd that the legislature demands operations of
transgender people. The Netherlands is prepared to defend the physical safety
of transgender people, and it calls on other countries to follow the Yogyakarta
Principles. But operations carried out on a healthy body are also a form of
physical violence.[48]

One person summed up the objections to article 1:28 by
stating simply, “The state should stay out of our underwear.”[49]

State-Enforced
Sterilization

Many transgender people experience the infertility
requirement as an affront to their dignity, embodying a judgment by society
that as citizens they are not deemed fit to enjoy the right to found a family
on the same basis as other people. In his report on the rights of transgender
people, Human Rights Commissioner of the Council of Europe Thomas Hammarberg
argues strongly against infertility requirements for transgender people:

It is of great concern that transgender people appear to be
the only group in Europe subject to legally prescribed, state-enforced
sterilisation.[50]

Human Rights Watch spoke with a number of transgender people
who had had SRS and who met the legal requirements to apply to change their
registered gender, but who refused to do so because of their strongly-felt
objections to the law. Alice Verheij said, “I live with male identity
documents. I refuse to apply to change my registered gender: I’m not
going to subject myself to a law that violates human rights.”[51]
Sophie told us, “I could have been registered as a woman by the end of
2010. But I am not
going to change my registered gender under the current law: I don’t want
to support the government in infringing my rights. The state can’t
dictate what medical procedures I must follow.”[52]

The infertility requirement in Dutch law was designed to
rule out situations where a person legally registered as a man would give birth
to a child, or where a person legally registered as a woman would father a
child. This, it was claimed, was necessary to protect the interest of the
unborn child.[53]
Article 1:28 of the Civil Code cannot and does not stop trans people from
having children before they apply to change their registered gender. In the
eyes of the law, a trans man remains the mother of any children to whom he gave
birth before changing his registered gender to male, while a trans woman
remains the father of any children she fathered before changing her registered
gender to female.[54]
Conversely, if a trans man adopts a child after the change of his registered
gender, he becomes the father of that child, but, in legal terms, he remains
the mother of any children he gave birth to before having SRS (and vice versa
for trans women).

What the legislature did not foresee in the early 1980s was
the development of reproductive techniques allowing genetic material (sperm or
eggs) to be frozen for later use by means of artificial insemination or in
vitro fertilization. With the arrival of these techniques, the possibility
arose for trans women to freeze their sperm before they started taking hormones
and had SRS. As a result, trans women in a lesbian relationship can have their
own genetic child with their partner even after having had SRS. Both gender
teams in the Netherlands discuss this possibility with trans women before
prescribing hormones (which result in the reduction and ultimately the
cessation of sperm production).[55]
In terms of the infertility requirement contained in article 1:28 of the Civil
Code, this indirect route to a biological child by means of freezing
one’s sperm is not interpreted by the courts as violating the requirement
that a trans woman must never again be able to beget a child. Trans women who
have had sperm frozen for the purposes of having a child after surgery are therefore
not barred from legal recognition of their female gender identity.[56]

Until recently, freezing eggs was subject to much stricter
regulation than freezing sperm, as a result of which this indirect route to a
biological child was not generally available for trans men. However, following
a vote in the lower house of parliament (Tweede Kamer) on April 14, 2011, all
women in the Netherlands until the age of 45 are allowed to have their eggs
frozen, opening the way for trans men to have a biological child even after
having had SRS, while still being able to apply for legal recognition of their
male gender identity.[57]

Convention
on the Recognition of Decisions Recording a Sex Reassignment

In July 2004, the Netherlands
became the first country to ratify the Convention on the Recognition of
Decisions Recording a Sex Reassignment, a convention adopted under the auspices
of the International Commission on Civil Status (ICCS).[58] The convention does not take a particularly human rights-friendly
approach to the standards states should apply in granting recognition of gender
identity changes; however, it does require that contracting states recognize
decisions taken by competent authorities in another contracting state to grant
legal recognition of a person’s gender identity following SRS.[59] The purpose of the convention is to avoid
situations where someone is registered as belonging to one gender in one
country, and belonging to another gender in another country.[60] According to the convention’s Explanatory Note,
for a decision to be eligible for recognition, “the body of the person
concerned must have been adapted, before the decision recording the sex
reassignment, as much as possible by medical treatment and surgery to give it
the physical appearance of the sex to which the person claims to belong. This
physical adaptation must not only have been carried out, it must also be
expressly recorded in the sex reassignment decision.”[61] The convention then provides that recognition does not
have to be granted “if the physical adaptation of the person concerned
has not been carried out” or it “is contrary to public policy.”[62]

It would seem therefore that
while the convention includes the requirement of SRS, it does not necessarily
include a requirement of infertility.[63] A growing number of the 16 member states of the ICCS
provide trans people with the possibility of obtaining legal recognition of
their gender identity without imposing an infertility requirement, including
Hungary, Spain, Portugal, and the United Kingdom (see chapter IV).

In a letter accompanying the
text of the convention, addressed to Parliament’sSenate (Eerste Kamer) and House of Representatives
(Tweede Kamer), the Dutch Minister of Foreign Affairs stated that the
infertility requirement was implied in the requirement of bodily adaptation by
means of SRS.[64] However, this is not how it is addressed in Dutch law:
the Civil Code sets out the requirements of SRS and infertility as two separate
requirements. Moreover, the purpose of the convention, namely to enable
transsexual people to have the same legal gender identity in different
countries, would be undermined if states parties were to reapply the conditions
for legal recognition of gender identity contained in their national
legislation.

Unless the Dutch government invokes
public policy considerations that override an individual’s right to have his
or her legal gender identity changed without proof of irreversible infertility,
it should recognize decisions taken in other states that grant legal
recognition of gender identity to transsexual people who have undergone SRS but
who do not meet the irreversible infertility requirement. To date, Spain is the
only other state to have ratified the convention (in 2010, bringing the convention
into force on March 1, 2011), and Spain recognizes changes to gender identity
without imposing an infertility requirement. [65]

II.
“It Is Like Your Life Is On Hold”

My
life consists of waiting. That’s the most difficult thing, even more
difficult than all the psychological challenges of being transgender.
You’re waiting all the time for other people to make decisions about you.

— Maarten (pseudonym), Amsterdam, March 30,
2011

Even transgender people who want to have SRS have to contend
with many obstacles before they can obtain legal recognition of their gender
identity under article 1:28 of the Civil Code. These range from exceedingly
long waiting lists at the two university hospitals that provide medical
assistance to trans people, to lengthy and costly legal procedures and a lack
of legal certainty in relation to changing forenames.

Waiting
Lists

The combined capacity of the two gender teams in the
Netherlands is insufficient to respond to requests for assistance from trans
people in a timely manner. There are waiting lists at every step in the
process. The length of these waiting lists fluctuates, but is usually several
months for each step. For trans people these periods of waiting, often without
knowing exactly when they can progress to the next step, are difficult, since
they are dependent on the assistance of the gender teams to give full
expression to their gender identity. As one man said, “All that time,
it’s like your life is on hold. I am now waiting for the last operation
and it feels like I’m left in no-man’s land.”[66]

The website of the gender team at the Free University states
that there is “a long waiting list” for the first appointment with
a member of the gender team.[67]
The initial waiting period is followed by another waiting list for the start of
the diagnostic phase. Several of the trans people who spoke with Human Rights
Watch and who were currently receiving assistance from the Free University
gender team gave examples of a total period of 16 – 18 months between
their initial call to the gender team and the start of the diagnostic phase. A
woman observed, “Between the time when I first called the gender team and
my first consultation with them, six months passed. After that first
consultation I had to wait another ten months for the start of the diagnostic
phase. It felt interminable.”[68]
With a further six months for the diagnostic phase itself, about two
years can thus pass before trans people start the 12-month “real-life experience”
phase and have access to hormones. After the real-life phase, further waiting
lists exist for each of the operations.

The waiting lists are not just difficult for trans people to
contend with because they delay access to hormones and surgery. The waiting
lists also mean that the date when trans people are eligible to change their
registered gender is pushed back repeatedly. While the state demands SRS as a
condition for legal recognition of trans people’s gender identity, itself
an unjustified demand as it violates trans people’s human rights, it has
failed to ensure that the gender teams have sufficient capacity to assist trans
people within a reasonable time.[69]
While waiting lists exist for many non-life threatening medical procedures in
the Netherlands, they are generally much shorter than those for medical
assistance to trans people.[70]

A
Name to Match an Identity

I
can’t change my registered gender because I don’t yet meet the
infertility requirement, and I can’t change my name because I can’t
change my registered gender.

— Jonathan, Amsterdam, March 31, 2011

For trans people, as important as the ability to change the
gender marker on their identity documents is the ability to adopt new forenames
appropriate to their gender. Transsexual people in the Netherlands have two
options for changing their forenames. The easiest and cheapest method is to
wait and apply to change one’s forenames at the same time as the
application to change the gender marker on one’s birth certificate.
Article 1:28b(2) of the Civil Code provides that, where the court grants a
request to change the registered gender of a transsexual person, it may grant a
request for the applicant’s forenames to be amended on their birth
certificate at the same time.[71]

The alternative option is to change one’s forenames in
a stand-alone procedure. The Civil Code provides for the possibility of a
change of forenames by means of an application to the court.[72]
This procedure is open to anyone, not just trans people.

The Civil Code places only two restrictions on the choice of
forenames: they may not be inappropriate (ongepast),
and they may not correspond to surnames unless these surnames are also commonly
in use as forenames.[73]
The Civil Code does not provide explicitly that forenames must be gender
specific.[74]
The Civil Code itself does not elaborate on the meaning of
“inappropriate” in this context, but according to guidance provided
by the government to parents inappropriate names include names that are in
conflict with existing morals, names that ridicule the bearer of these names,
and names that consist of an absurdly large number of separate forenames.[75]

Human Rights Watch spoke with a number of trans people who
had applied to the court to change their forenames at a point in time when they
were not yet eligible to apply to change their registered gender under article 1:28.
In some cases these applications had been successful, enabling the trans people
in question to start using forenames that matched their gender identity on
their driver’s licenses, bank cards, contracts, etc, even if they could
not yet change the gender marker on these documents. However, in a number
of other cases the court had turned down such applications on the grounds that
the chosen forenames were inappropriate for someone who was still legally
registered as belonging to the other sex. Maud told us:

I submitted an application to change my first names as soon
as I had received my diagnosis and had been given the go-ahead from the gender
team to start taking hormones. I included a letter from Professor
Cohen-Kettenis from the VU [university hospital], stating that the gender team
supported the name change. The court rejected my application: it argued that my
chosen name was inappropriate for me because I’m still registered as a
man. There was no court hearing, my application was decided on the papers. So the
judge never had an opportunity to see me, to see that I am a woman. I lodged an
appeal and submitted two other expert letters, one of which provided proof that
the forename I had chosen [Maud] is in fact in use not only by women but also
by men. I don’t know whether it was this that convinced the court, but on
appeal my application was granted.[76]

Jonathan explained to Human Rights Watch:

It is up to the judge to decide whether a first name is
appropriate. In my case, this particular judge decided that for me it was
inappropriate to have a male first name, because in the eyes of the law
I’m still female. I can’t change my registered gender because I
don’t yet meet the infertility requirement, and I can’t change my
name because I can’t change my registered gender. I didn’t have the
money to lodge an appeal against the decision.[77]

The Civil Code does not specifically address the question of
name changes from a male to a female forename or vice versa, and in particular
does not impose any conditions such as SRS for name changes for transgender
people. But as these examples make clear, some judges (but not all) interpret
the general “appropriateness” condition for forenames to mean that
female forenames are inappropriate for people who are legally registered as men
and vice versa, even with respect to trans people who have been diagnosed with
gender identity disorder by one of the two gender teams and who have embarked
on hormone therapy. These judges thus accord primacy to people’s
registered gender, ignoring the social reality of the people in question, and
their own expressly stated wish to adopt a forename that is appropriate for
their gender identity. In this way, judges make forename changes for trans
people conditional on SRS and infertility, requirements that are not in fact
provided by law.

For example, in the case of a trans woman who received
medical assistance from the Amsterdam gender team and who would eventually have
SRS but who had not yet had surgery, the ’s-Hertogenbosch Court of Appeal
held that she did not yet meet the requirements of article 1:28 of the Civil
Code and therefore the court could not order her birth certificate to be
amended. In relation to the trans woman’s application to change her forename,
the court said:

Although [applicant] presents herself as a woman in society
and uses a female forename, the Court is of the opinion that, since the
applicant’s request to have her gender marker on her birth certificate
changed has been refused and the gender marker “male” will
therefore be left unchanged, the requested (female) forenames are undesirable
and moreover inappropriate in the meaning of article 1:4 of the Civil Code.[78]

It should be noted that in relation to changes of surnames
(which are subject to a different procedure), the UN Human Rights Committee, in
the case of A. R. Coeriel and M. A. R. Aurik v. The Netherlands, held that the
state’s refusal to allow the applicants to change their surnames
constituted a violation of the right to privacy under the International
Covenant of Civil and Political Rights, stating:

[T]he notion of privacy refers to the sphere of a
person’s life in which he or she can freely express his or her identity,
be it by entering into relationship with others or alone. The Committee is of
the view that a person’s surname constitutes an important component of
one’s identity and that the protection against arbitrary or unlawful
interference with one’s privacy includes the protection against arbitrary
or unlawful interference with the right to choose and change one’s own
name.[79]

Clearly, not just surnames but forenames too constitute an
important component of one’s identity. To the extent that forenames are
gender specific, this applies especially to transgender people who have a
forename associated with the gender opposite to that of their gender identity.
Therefore, instances where transgender people who apply to have their forenames
changed are denied on the basis that the chosen names are “unsuitable”
for the person in question, arguably amount to arbitrary interferences with the
right to privacy.

Quite apart from the current lack of legal predictability
with regard to applications for name changes, many trans people are also
deterred from applying for a name change by means of a separate court procedure
because of the costs involved. The state has valid reasons to ensure that name
change procedures take into account the administrative costs to the state.
However, the current costs are prohibitive for many trans people who have a
legitimate and pressing need to change their forenames. As things currently
stand, choosing to apply for a name change in a separate procedure means that transgender
people need to pay for a lawyer and the court costs twice: first for their name
change and then for the change of gender registration (although people on low
incomes would qualify for legal aid for both procedures). As one man said,

I applied to change my name at the same time as my gender
registration. If it hadn’t been so expensive I would probably have tried
to change my name earlier, because it is very unpleasant to walk around with an
ID with the wrong name.[80]

A new law on recognition of gender identity that would do
away with the current medical conditions would go a long way to address these
obstacles related to forename changes: by removing the main barriers for
transgender people to change their registered gender, the main reason for
transgender people to change their forenames in a separate legal procedure
would fall away.

III.
Living With the Wrong Identity Papers

I
used to be open and outgoing. But I notice that more and more I make the
impression of being somewhat autistic, because I avoid all forms of contact
that could lead to questions about my gender identity. It changes your
character. People say to me, “What’s the big deal, having an F in
your papers?” But it creates a lot of stress.

— Maarten (pseudonym), Amsterdam, March 30,
2011

Due to the restrictive nature of article 1:28 of the Civil
Code, many trans people in the Netherlands live with identity documents of the
wrong gender. Women with male identity documents and men with female identity
documents face a wide array of problems on a daily basis, the cumulative effect
of which is to thwart trans people’s participation in society. The
European Court of Human Rights, discussing the situation of so-called
post-operative transsexual people who were denied access to identity documents
with the correct gender markers, observed:

The stress and alienation arising from a discordance
between the position in society assumed by a post-operative transsexual and the
status imposed by law which refuses to recognise the change of gender cannot,
in the Court's view, be regarded as a minor inconvenience arising from a
formality. A conflict between social reality and law arises which places the
transsexual in an anomalous position, in which he or she may experience
feelings of vulnerability, humiliation and anxiety.[81]

What is true for trans people who have had SRS is equally
true for trans people who live in the gender role opposite to that of their
birth sex without having had SRS. After all, the “anomalous
position” to which the court referred arises out of a “conflict
between social reality and law,” and the social reality of trans people
is determined not by whether they have undergone SRS but by the gender role in
which they live.

Trans people in the Netherlands told Human Rights Watch of
the many obstacles, large and small, which they must overcome on a daily basis
due to the misidentification of their gender on their identity documents and in
the underlying civil status records. This chapter documents examples given by
trans people of the “feelings of vulnerability, humiliation and
anxiety” of which the European Court of Human Rights spoke.

For trans people who do not want SRS, and who will therefore
never be able to change their gender markers under the current legislation,
these obstacles last a lifetime. A popular shorthand phrase for trans people
refers to people who are “trapped in the wrong bodies.” But trans
people who do not want SRS are not so much trapped in the wrong bodies, since
they have in fact decided to accept their bodies as they are, but trapped by
the law into an existence that is shaped every day of their lives by the
impossibility of obtaining identity documents that match their gender identity.
The pressure on trans people who find themselves in this situation is enormous.
A woman who did not want SRS, who had lost her own business once she started
living as a woman, and who had then suffered countless indignities when
applying for jobs said, “I have even thought about having the operations
after all, just to be done with all the crap. But if I come to regret the
operations later on, I’ll be deeply unhappy for the rest of my
life.”[82]

For trans people who want SRS, and who would want SRS even
if it were not a requirement for obtaining new identity documents, these
obstacles are of a temporary nature: once they meet the legal requirements they
can apply to have their gender markers changed. Nevertheless, in practice this
still means that people spend many years with the wrong identity documents, due
to the delays they face at every stage of the medical process. Jochem Verdonk, chairman
of the Transman Foundation, summed up the impact of this situation as follows:
“People are left dangling in between two worlds for far longer than is
necessary. It is needlessly traumatizing for people who are already very
vulnerable.”[83]

Some trans people succeed in officially changing at least
their first names before they can apply to have their gender marker changed.
But as the previous chapter showed, such attempts sometimes founder on the
unwillingness of judges to allow changes of first names for trans people who
have not had SRS.

For many trans people, the period in their lives when they
have just started to take hormones is a particularly vulnerable phase. In
accordance with the protocols used by the two gender teams, trans people who
are prescribed hormones are expected to live full-time in the desired gender
role. But it takes time, at least several months, for someone’s
appearance to be altered sufficiently under the influence of hormones until
they are fully “passable” in the opposite gender role, that is,
until others identify them correctly. During that time, many trans people feel
they must brace themselves for each interaction with strangers. Having papers
with the wrong gender marker often undermines their confidence, as invariably
their papers call forth the need for explanations about their gender identity.
A man who now has male papers described the time when he first started to take
hormones and when he still had female documents:

It is an uncertain phase. In my case people continued to
address me as a woman for another year to 18 months after I started taking
hormones. At these moments it would help to have new papers, then you have at
least that to hold on to.[84]

Another man, who was taking hormones but who had not yet had
SRS, told Human Rights Watch:

When I’m in a queue at a counter, all I think about
is how I can avoid showing my ID. Even when I know that many people don’t
even pay attention to the M or F in your papers. I just feel a bit ridiculous
with that F in my passport, it feels like I’m acting in some kind of
play. I would feel much stronger if I had new papers, then I would be able to
let go at least of that particular issue.[85]

The Identity
Card Requirement

I
leave my ID at home, despite the identity card requirement. I’m not going
to show it, I’d rather be fined. If I were to show my ID, I would really
be showing them a false ID, because that person has ceased to be me a long time
ago.

— Matthew, Amsterdam, April 13, 2011

Since January 1, 2005, everyone in the Netherlands aged 14
years and older has been required to be able to show a valid ID at the request
of the police and certain authorized civil servants such as tax
inspectors. People who cannot produce a valid ID when asked for it may
have to report to the nearest police station to have their identity checked.
They also risk a fine.

In most situations Dutch citizens have a choice between
three IDs: their passport, their identity card (which can be used for travel
within the European Union), or their driver’s license. All three
documents carry people’s first names in full; only passports and identity
cards also carry a gender marker. As a result, many trans people who have not
yet been able to obtain new identity documents prefer to carry their
driver’s license. However, driver’s licenses do not qualify as
valid IDs in situations where people need to provide proof of nationality or
immigration status, because driver’s licenses do not contain this
information. Thus when one enters into a new employment contract, applies for
social welfare, or is dealing with the internal revenue service, one must use
either one’s passport or one’s identity card.

And of course not everyone has a driver’s license.
Children in particular have no choice but to use their identity card or their
passport, since in the Netherlands one must be at least 18 to qualify for a
driver’s license. For many transgender children, having to show an ID
with the wrong gender marker is so awkward and humiliating that they leave
their IDs at home on purpose: they prefer the risk of being fined over being
“caught with the wrong ID.” (See chapter IV for a detailed
discussion of the position of transgender children.) As 17-year-old Matthew told
Human Rights Watch:

Ever since I started using a male first name, I have the
impression that that other person no longer exists. But my new identity
doesn’t officially exist yet. It is like they are trying to punish me
because I don’t identify with that person on my ID. Really you should be
punished if you’re trying to provide a false ID, but in my case I would
be punished if I tried giving them the right identity information. What’s
official is wrong, and what’s right doesn’t exist yet.[86]

Many trans people who do not yet have the right papers avoid
certain situations or interactions in order to avoid having to show their ID,
such as paying with a credit card in shops that demand to see an ID in the same
name as the credit card, or buying alcohol or renting DVDs with an age
certificate, where people must show an ID to prove their age. These latter
situations can be problematic for trans men in their twenties especially, since
they often look much younger than their age. A man said,

They sometimes ask me for proof of identity when I order a
drink. When that happens, I prefer to order something else. I once had a bad
experience in a pub in the UK. I ordered a beer and was asked for
identification to prove my age. First I showed two different documents that
didn’t have any gender markers, but the bartender didn’t accept
those as proof of identity. So then I showed him my passport. When he saw the F
in my passport, he waved the passport above his head and called his colleagues
and the other customers around the bar and shouted, “Look, it’s a
girl!” There were a lot of people who had quite a bit to drink, and I was
afraid that there might be some idiot who would start beating me up. So I asked
for my passport and I left. Ever since then, I’m very hesitant about
showing my passport in these kinds of situations.[87]

The impact of such incidents was something echoed by many
trans people. A woman told Human Rights Watch:

Other people don’t even notice, but you must show
your ID so often. People don’t realize how much of an impact this has on
trans people. My friend [who is also a trans woman] was forced to get off the
train once, because the ticket inspector would not believe that she was the
same person as the person on her travel card.[88]

The
Register of Civil Status Records

The Netherlands has 12 so-called basic registers, one of
which is the register of civil status records (Gemeentelijke
Basisadministratie van Persoonsgegevens, known by the abbreviation GBA).
For each person residing in the Netherlands, the GBA contains three sets of
data under the headings general, special and administrative. The general data
includes, among other things, one’s surname, first names, sex, and date
and place of birth. This information is included in the GBA on the basis of the
information contained in someone’s birth certificate. For each person
registered in the GBA, the general information section also includes the unique
identifying number allocated by the state to each Dutch citizen and resident (burgerservicenummer,
BSN).[89]

Several hundred agencies and institutions that require
personal data to discharge their public duties have access to the data
contained in the GBA, including state agencies such as the police and the
internal revenue service (belastingdienst),
but also, for example, pension funds and public notaries. Subsets of data are
made available to specific agencies; for example, a limited set of data about
all registered women older than 50 years is made available to designated
screening organizations for the purposes of breast cancer screening programs.

A wide array of other actors are under a legal obligation to
ensure that data contained in their own records are in line with those in the
GBA, including, for example, banks and insurance companies, employers and
educational institutions.

This system of interconnected recordkeeping means that
information about people’s gender as registered in the GBA is ubiquitous.
For most people this might not pose any particular problems, but for trans
people who are unable to change their gender marker on their birth certificate
and hence their registered gender in the GBA, the inevitable consequence is
that the incongruity between their birth sex and their gender identity pursues
them in all aspects of their lives. Pay slips and other official communications
from employers, letters from insurance companies and pension funds, bank
statements: all will be wrongly addressed to Mr. X instead of Mrs. X, or Mrs. Y
instead of Mr. Y. Trans people whose gender identity is neither male nor female
find it impossible to have correspondence addressed to them simply with their
initials and their surname, without the addition of Mr. or Mrs.

For many trans people, such communications feel like
recurring denials of who they are; however much they try to shrug their
shoulders about it, for many it remains painful to be addressed incorrectly. A
woman said, “Letters addressed to Mr. S. are hurtful. I try hard not to
let it affect me, but each time you receive a letter like that, you’re
upset.”[90]A man stated, “When they’re addressing Mrs H.,
they’re addressing someone who doesn’t exist, who has never
existed.”[91]
Another woman told Human Rights Watch:

Recently I came home after having been abroad for a few
weeks. Nineteen of the 20 letters that were waiting for me were addressed to
Mr. V. This happens to me a hundred times a year. It harms me, it marks me out,
it affects me. It hurts, permanently, and it’s stressful. It leaves me
feeling isolated, disconnected from the rest of society.[92]

More difficult still for many trans people are situations
where they are left with no choice but to put their signature on forms that are
based on their birth sex, or having to tick the wrong box on the many forms
that ask one to identify one’s gender as well as one’s names and
other personal data. To many this deliberate act of denying their own gender
identity feels like self-betrayal. A woman said, “I can’t bear to
tick that box with ‘M’ myself. Everything in me resists that.
That’s not who I am.
I’m not just called
Sabrina, I am
Sabrina.”[93]

Another woman told us:

To sign forms that are addressed to Mr. J., I can really
hardly get myself to do that any longer. I need to ask for an amendment of my
employment contract, because my terms of employment have changed but this is
not reflected in my contract. I keep postponing this, because my contract is in
the name of Mr. J. I can’t bear the thought of receiving a letter
addressed to Mr. J. with the amended contract, which I will then have to sign
as Mr. J. I cannot sign
as Mr. J.[94]

Getting
Around the GBA: Informal Solutions

Many trans people try to get organizations and institutions
to make a note in their own records so as to ensure that letters and other
communications from these organizations are addressed correctly, even if it is
impossible permanently to change the underlying data contained in the files
because of the link to the data in the GBA. However, such attempts often fail.
A woman explained:

My previous health insurance company insisted that they
could no longer register me as Mrs. H., only as Mr. H., due to their legal
obligation under the 2006 law to ensure consistency between their client
database and the GBA. As a consequence, one time in the hospital the nurse
arrived in the waiting room and called out for Mr. H. Can you imagine what that
is like, when you then have to stand up in a full waiting room? I then wrote to
15 different health insurance companies, to ask if they would register me as
Mrs. H. if I took out an insurance policy with them. Only one insurer replied
to say they would. I then submitted an official complaint to the umbrella
organization of health insurers about this situation. The response I got only
stated that it was too difficult for the insurers to comply with my request
because they were bound by the GBA data. They would have to change the
information about my gender in their own files by hand, and this they were not
willing to do.[95]

A man remarked that organizations often felt they had no
choice: “At most institutions, staff are kind and understanding, but they
say they cannot change the information about my gender because of the
GBA.”[96]
What is often particularly upsetting to transgender people is that in almost
all cases their gender is in fact completely irrelevant to the issue at hand.
As Jiro Ghianni put it wryly, referring to the bills from the electricity
company which the company insisted could only be addressed to Mrs. G: “Surely
my gender is irrelevant here. Or do men get a different kind of electricity
than women?”[97]

Trans people also gave examples of encounters with officials
who tried to be helpful. Trans people found that in some cases it was possible
to persuade institutions to make a note in their files about their gender, even
if the data in the main register could not officially be changed. On that
basis, these institutions would then at least address their letters and other
communications correctly, and issue insurance cards, membership passes, etc.,
in the right names and gender. As one woman said:

It’s not like it’s completely impossible to get
institutions to change your details; on the contrary, sometimes one phone call
is enough, if you’re prepared to explain things calmly. In my experience,
daily practice is miles ahead of the law; many institutions show a real
understanding of my situation. There is a lot of room to find practical
solutions. I have a health insurance card with an F, a hospital card with an F,
and my bank statements are also addressed correctly. Even when I was summoned
to appear as a witness in a court case, my lawyer arranged for me to be
addressed in court as Mrs., not Mr.

She drew a larger lesson from her positive experiences with
these institutions:

These positive examples are shameful for the government,
because it shows that in fact there is no real resistance in society to the
idea of letting transgender people change their papers. The government
can’t maintain that they cannot amend the law because society isn’t
ready for such things; in fact, most people appear perfectly capable of dealing
with such requests.[98]

However, as she also observed, “The only problem is
that, as long as you can’t change your ID officially, each time you have to explain your
situation to get them to amend your details. That is unpleasant: I wish I could
determine myself when I disclose the fact that I am transgender.”

Another person added:

With institutions whose records are linked to the GBA, you
have to ask every year again whether they can send you a new insurance pass
with an M, for example, because automatically their data revert to those
contained in the GBA. I don’t like the fact that I’m registered as
F with many institutions, but it’s too much work to try to get it all
changed every year.[99]

“They
Don’t Believe That I Am Who I Say I Am”

You
feel diminished as a man whenever you need to explain that you are in fact a
man. Sex registration is like administrative violence that is condoned by the
state.

— Jasper (pseudonym), Amsterdam, April 7,
2011

For many trans people, one of the most distressing
consequences of having the wrong gender in their identity documents is that
they repeatedly have no option but to reveal to perfect strangers, often within
earshot of a larger audience of yet more strangers, details of a particularly
intimate aspect of their private lives, namely that they are transgender. A
woman recounted her battle to have her prescription for hormones issued in the
name of Mrs. L. instead of Mr. L., so that she would not get any questions
about her identity at her pharmacy, where she was already registered as Mrs.
L.:

I’ve managed to
persuade the hospital to do it, even though at first they said it was
impossible. But I had to have a long argument about it at the counter, with a
full waiting room behind me. Similarly, each time I have an appointment at the
hospital, I have to remind the nurses at the counter to call for Mrs. L., not
Mr. L., when they come to get me from the waiting room.[100]

A man described what had happened to him in similar
circumstances:

One day I sat in the waiting room at the hospital. I was
the only person in the room. A nurse came in, she didn’t say anything,
but she looked at her papers and she must have been looking for a Mrs. K.,
because she looked at me, saw a man, and then she left. A few minutes later she
came back, she still didn’t see a woman in the waiting room so she left
again. When she came back a third time I addressed her and gave her my surname.
Then she realized she had been looking for me. These situations are so
humiliating and embarrassing.[101]

A student explained:

A few weeks ago I was at the offices of the student loan
company, because I wanted to apply for a loan. They wouldn’t help me,
because they didn’t believe that I was the same person as the person on
my papers. So I had to have them call first the VU Hospital, and then my
lawyer, before they would assist me.

She went on:

When I started my new
degree course, 18 months ago, the first thing I did was to ask for a meeting
with my mentor to explain my situation, because I wanted to be listed on the
class list [which schools use every day to record students’ grades,
absences, etc.] with an F, not an M. It was yet another occasion at which I
needed to explain my story to a stranger. Now at least I’m listed as F on
the class list. But in the school’s main records I’m listed as M,
because my student number is coupled to the GBA data, including my official
gender. So all of my teachers can see that I’m registered as M. Why could
it possibly be of value to the teachers to know that I’m transgender?[102]

Another woman explained how even urgent requests for help
can be sidetracked by misunderstandings about one’s gender:

Last Sunday I was hit by a hockey ball on my eyebrow during
a match. Because it was Sunday I couldn’t reach my own doctor, so I
called the weekend emergency clinic. They asked for my BSN [the unique number
allocated to everyone registered in the GBA] and my date of birth.
Automatically, both my name and my gender appeared in their system, so then
there was great confusion because they didn’t understand how a woman
could be calling when their records said Mr. S.[103]

Trans people emphasized that the examples they gave were not
exceptions, but that they were confronted with such situations on a daily
basis. A woman told us:

Each time that information derived from the GBA is called
up by some official is hurtful, because each time I’m met with a raised
eyebrow, each time I have to provide an explanation, over and over and over
again.[104]

A man said:

You have no option, you’re forced, always, to provide
an explanation. Sometimes I’m in the right mood for that, but not always.
You feel diminished as a man whenever you need to explain that you are in fact
a man. Sex registration is like administrative violence that is condoned by the
state.[105]

A woman said of such situations where she was challenged
about her identity, “At a stroke, it’s like they pull the rug from
underneath you.” She went on:

It makes me very, very tired, you’re always having to
explain. After a while, you’re just done with it. You just want to live,
just like everybody else. New papers would help, then there would be no need
anymore to discuss it all the time.[106]

Another woman said, “It would be such a relief if you
could already obtain new papers before you have surgery. Right now, you have to
brace yourself at every moment of your life, because you never know when will
be the next time you have to explain yourself.”[107]

One activity where transgender people run a particularly
high risk of having to explain the discrepancy between their identity and their
papers is international travel and crossing borders. As a result, for many
trans people international travel is the subject of much anxiety. They may try
to limit their journeys abroad for as long as they do not have papers with the
correct gender marker, but for people whose jobs require international travel,
or who have family abroad, this is not always an option.

Several trans people who had traveled internationally with
identity documents that did not conform to their gender identity gave examples
of the humiliating situations they had encountered at airports. One person
said, “When I travel internationally, they often take me out of the queue
for questioning: people think I have stolen my passport.”[108]
A man who did not yet have papers with the right gender marker gave another
example: “Once when I flew to France they thought I had the wrong ticket.
They asked where the rest of my family was, because they thought that I had my
mother’s or my sister’s ticket. I had to explain to them that I am
transgender.”[109]

For some transgender people, examples of this kind are
enough to limit international travel to the absolute minimum. A woman who was
about to receive her new papers, almost five years after she first approached
the gender team at the Free University Hospital, said: “It is something I
have taken into account these past years, I’ve only traveled to Schengen
countries [between which passport free travel is possible], for example.”[110]
A man who was probably still at least two years away from receiving a new
passport said, “I have been wanting to go traveling in South America, but
I have postponed that until after I get a new passport.”[111]
Another man had adopted the same approach: “During that time [after he
had started to take hormones, but before he obtained new papers] I did not
travel abroad, based on unpleasant experiences of other trans people who tried
to cross borders.”[112]

Employment

If
I had new papers, my job interviews wouldn’t be about being transgender.

— Linda, Rotterdam,
April 1, 2011

For many transgender
people, keeping the jobs they are in, or finding new employment, is a major
concern. Their identity documents are by no means the only reason for this:
many of the problems trans people experience in the workplace, or when they are
applying for jobs, derive from a lack of understanding or acceptance of trans
people by society at large. Identity documents that match trans people’s
gender identity do not, by themselves, suffice to solve these issues, including
the discrimination of which many trans people complain. Nevertheless, in this
area of their lives too, the fact that trans people cannot change their
identity documents to reflect their gender identity forms an impediment to
their participation in the labor market. A woman who does not want SRS, and who
therefore has no possibility of ever changing her papers under the current law,
described her experience:

I applied for a job as Mrs. L. [female first name]. I was
invited for an interview, and at that stage you don’t need to show your
passport. But before they offer you a job, they check your records, through
your BSN [the unique identifying number allocated to everyone registered in the
GBA]. So then they saw that I am registered as a man, and they called me back
with all kinds of questions. After that I had another interview with them, and
during that entire interview the only subject was my being transgender. Trans
people face problems with traveling, in shops, etc., but in the end you can get
over all of that. But the biggest problem is employment, and applying for jobs.[113]

A woman who had to follow an obligatory course to update her
qualifications to keep her job had faced the prospect of receiving her
certificate in the name of Mr. J. instead of Mrs. J. She explained:

Several times I was on the verge of calling in sick to
avoid having to do the course under a male identity. In the end, after a long
battle with the training institute, they arranged for me to be listed as a
woman in their internal records, even if they could do nothing about the fact
that in their official records I had to be listed as a man: the institute must
provide details to the national examination register and these records must be
in line with the GBA. We then agreed that they would issue the certificate to
me with my initials only, so as not to show my former [male] first name. When I
graduated, I didn’t want to go to the graduation ceremony, because I
would be the only person whose certificate would have initials only, rather
than the full name: it would be yet another confirmation that as a transgender
you don’t have the same rights as everybody else. To my great surprise my
certificate had my full [female] names after all. It was very emotional.[114]

A man told Human Rights Watch:

Each time you apply for a job, you have to show your
papers. I apply for jobs as Mr. A. [male first name] but on my papers there are
different [female] names. People might not pay particular attention to the M/F
in your passport, but of course they see your names. Without new papers, you
mustalways
explain your situation. If I already had new papers, it wouldn’t be an
issue, maybe it would simply come up at some point later on, when you’re
already in the job.[115]

Another man said:

Before I could pass as male, when I showed up in
men’s clothes for a job interview I would be rejected straight away.
But even once I began to pass as a man, if I succeeded in getting past the
interview stage I would run into another problem: my documents. As a
result, I could only get horrible jobs for which I was overqualified. It
took me ages to find a good job. My current employer is great, but
even there I initially had a problem: because of the discrepancies in my
documents, the payroll administration—handled
by a separate firm—was a mess and it
took two-and-a-half months before I received any salary at all."[116]

IV.
Evolving Norms, Evolving Practices

Calls
to Change the Law

In the 1980s the Netherlands
was among the first group of European countries to legislate for the legal
recognition of the gender identity of transsexual people. While this was a
progressive step at the time, more than a quarter century after article 1:28 of
the Civil Code came into force the country has been left with what is now
widely perceived as outdated legislation. This seems due mostly to legislative
inertia, rather than any strong political opposition to the idea of legislative
reform in this area. Trans people point to various causes for this lack of
political initiative: on the one hand, the fact that it concerns a relatively
small group of people, who are, furthermore, mostly invisible in society as a
group, and on the other hand a sense of complacency fed by a conviction that at
least in terms of the provision of medical assistance to trans people the
Netherlands has done relatively well.

The Netherlands is far from the only country to make SRS and
infertility a requirement for the legal recognition of the gender identity of
trans people. In fact, the commissioner for human rights at the Council of
Europe has noted that in the majority of the 47 Council of Europe member states
similar provisions are in place. In another, smaller group of member states the
possibility of legal recognition of the gender identity of trans people does
not exist at all. In the third and smallest group of member states, including
Hungary, Portugal, and the United Kingdom, transsexual people can change their
registered gender by submitting an expert statement to a competent authority to
the effect that the applicant is indeed transsexual, but without having to
provide proof of either SRS or infertility.[117]

However large the number of other countries that have
legislation that is equally restrictive, this cannot serve to justify the Dutch
approach to legal recognition of trans people’s gender identity as
embodied in its current law. On the contrary, the Dutch government should,
without further delay, bring its legal framework into line with current
understandings of human rights-compliant ways of regulating recognition of
gender identity. In doing so, it should pay heed to the calls of the Council of
Europe’s human rights commissioner, who, following his visit to the
Netherlands in September 2008, recommended that the Netherlands

[a]bolish the legal condition of sterilisation and other
compulsory medical treatment as a requirement for legal recognition of a
person’s gender identity.[118]

Similarly, in its Concluding Observations of February 5, 2010,
the UN Committee on the Elimination of Discrimination against Women
(CEDAW) stated:

The Committee also expresses concern at specific health
problems experienced by transgender women, in particular the compulsory
sterilization they should undergo to get their birth certificates changed
…[119]

In March 2010 the Committee of Ministers of the Council of
Europe recommended to member states, including the Netherlands:

Prior
requirements, including changes of a physical nature, for legal recognition of
a gender reassignment, should be regularly reviewed in order to remove abusive
requirements.

Member states should take appropriate
measures to guarantee the full legal recognition of a person’s gender
reassignment in all areas of life, in particular by making possible the change
of name and gender in official documents in a quick, transparent and accessible
way; member states should also ensure, where appropriate, the corresponding
recognition and changes by non-state actors with respect to key documents, such
as educational or work certificates.[120]

Promises
to Change the Law

On a number of occasions, the Dutch government acknowledged
the need to amend article 1:28 of the Civil Code, but without then taking the
necessary steps to translate these expressions of political will into a new
law. On May 17, 2009 the then minister of foreign affairs, Maxime Verhagen,
gave a speech in the “Old Hall” of the House of Representatives, in
which he indicated that the law would change. He said: “I consulted with
Minister Hirsch Ballin of the Ministry of Justice and we both agree that the
law [article 1:28] should be changed. We will take care of this. I
promise.”[121]
In June 2009 the then minister of justice, Ernst Hirsch Ballin, stated that a
bill to amend article 1:28 would be presented for consultation in the fall of
that year, taking into account the March 2009 recommendations of the commissioner
for human rights at the Council of Europe.[122]
The promise was repeated in October of that year by the minister of education, culture
and science.[123]
However, no such bill had been presented by year’s end, and in 2010 the
promise was overtaken by events when a cabinet crisis led to new parliamentary
elections.

Following these elections, the government program published
by the new coalition government stated: “The cabinet guarantees the
emancipation of lesbian women, homosexual men, bisexual people, and transgender
people, and shall develop a policy for this purpose.”[124]
This was followed by a promise in March 2011 by the state secretary for security
and justice to present a bill before the summer of 2011 to abolish the
infertility requirement for legal recognition of the gender identity of
transsexual people.[125]
The government committed itself to this undertaking in the policy document on
emancipation presented by the government to parliament on April 8, 2011, which
sets out the main priorities for policy initiatives for the emancipation of
homosexual and transgender citizens and of women.[126]

The
Right to Private Life and the Right to Physical Integrity

Presently, most countries’ legal systems are based on
the principle that people are either men or women. The state’s interest
in knowing people’s gender derives in part from the fact that one’s
gender determines what type of legal relations one can have with other people:
for example, in countries where same-sex marriage has not been legalized, only
people of opposite genders can marry each other. The law differentiates between
men and women in other ways too: for example, countries with conscription armies
often only call up men for military duty. There is also a positive duty on
states to promote and ensure gender equality, and in order to fulfill this
duty, states need to collect information and data that can be segregated by
gender, thereby making it possible to determine the extent of any inequalities.

Against this background, states have an interest not only in
registering people’s sex at birth, but also in regulating the ways in
which people can change their legal gender later in life. There are different
ways of doing so, but all legal frameworks for the recognition of gender
identity should respect certain minimum conditions. The commissioner for human rights
at the Council of Europe has drawn attention to the fact that “[g]ender
identity is one of the most fundamental aspects of life.”[127]
Similarly, the European Court of Human Rights referred to the freedom of a
trans woman applicant to define herself as a woman as
“one of the most basic essentials of self-determination.”[128]
Given the fundamental nature of the right to define one’s own gender
identity, it follows that any conditions imposed on the legal recognition of
gender identity must be subjected to close scrutiny. In particular, such
conditions must comply with international human rights obligations. The
current legal framework for gender recognition in the Netherlands as embodied
by article 1:28 of the Civil Code does not meet this minimal requirement.

First, the two conditions of SRS and infertility are an
unjustified interference with the rights to personal autonomy and physical
integrity. The rights to personal autonomy and physical integrity are protected
by the Dutch Constitution, subject to restrictions
imposed by law.[129]
They are also protected by several international human rights instruments
ratified by the Netherlands, including the International Covenant on Civil and
Political Rights[130]
and the European Convention on Human Rights (ECHR), as part of the right to
private life.[131]
Article 8 of the ECHR provides:

1. Everyone has the right to respect for his private and
family life, his home and his correspondence.

2. There shall be no interference by a public authority
with the exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national security,
public safety or the economic well‑being of the country, for the
prevention of disorder or crime, for the protection of health or morals, or for
the protection of the rights and freedoms of others.

To make surgery and infertility a requirement for the
enjoyment of the right to recognition of gender identity is a prima facie
infringement of the rights to personal autonomy and physical integrity.
Consequently, for such a requirement to be justified under article 8 of the ECHR
it must be lawful; it must be necessary for one of the purposes specified in
article 8(2) of the convention; and it must be a proportional means for
achieving that purpose. While the conditions of SRS and infertility are indeed
prescribed by law, they place a disproportionate burden on transgender persons
that cannot be justified by reference to the purposes specified in article
8(2).

Relevant case law can be
found in a January 2011 decision from the
Constitutional Court in Germany: it ruled that two conditions in German law
similar to those in Dutch law violated the right to physical integrity. The court
struck down the two provisions as unconstitutional.[132] Sections 8(1) nos.
3 and 4 of the German Transsexuals Act (Transsexuellengesetz (TSG), 1980)
required infertility and SRS respectively for the legal recognition of the
gender identity of transsexual people. The Constitutional Court first pointed
out that it was “constitutionally unobjectionable that the legislature
… makes the gender determination under the law of civil status contingent
on objectifiable prerequisites in order to render the civil status permanent
and unambiguous” and that it was therefore reasonable for the legislature
to specify “how evidence of the stability and irreversibility of transsexual
persons’ perception and life in the other gender is to be
provided.” However, the court observed that there were limits to the
conditions the state could impose:

… by unconditionally and
without exception requiring them under § 8.1 nos. 3 and 4 TSG to undergo
surgery that modifies their genitals and leads to infertility, the legislature
places excessive demands on such evidence which are unreasonable to expect of
the persons concerned.[133]

In relation to the condition of SRS (section 8.1 no. 4 TSG), the court said, “Gender reassignment surgery constitutes a massive impairment of physical integrity, which is protected by Article 2.2 GG [Grundgesetz, Germany’s Basic Law], and it involves considerable health risks and side effects for the person concerned.” The court argued moreover that the assumption that had informed the Transsexuals Act, namely that SRS is always medically indicated for people with a diagnosis of transsexuality, was no longer considered correct:

However, according to the current state of scientific knowledge, it is not always indicated even in the case of a diagnosis of transsexuality that is certain to a large extent. The permanent nature and irreversibility of transsexual persons’ perceived gender cannot be assessed against the degree of the surgical adaptation of their external genitals but rather against the consistency with which they live in their perceived gender. The unconditional prerequisite of a surgical gender reassignment according to § 8.1 no. 4 TSG constituted an excessive requirement because it requires of transsexual persons to undergo surgery and to tolerate health detriments even if this is not indicated in the respective case and if it is not necessary for ascertaining the permanent nature of the transsexuality.[134]

The same applies with regard to the permanent infertility which is required under § 8.1 no. 3 TSG for the recognition under the law of civil status to the extent that its permanent nature is made contingent on surgery. By this prerequisite, the legislature admittedly pursues the legitimate objective to preclude that persons who legally belong to the male sex give birth to children or that persons who legally belong to the female sex procreate children because this would contradict the concept of the sexes and would have far-reaching consequences for the legal order. Within the context of the required weighing, however, these reasons cannot justify the considerable impairment of the fundamental rights of the persons concerned because the transsexual persons’ right to sexual self-determination safeguarding their physical integrity is to be accorded greater weight. Here, it has to be taken into account that in view of the fact that the group of transsexual persons is small, cases in which the legal gender assignment and the role of procreator, or person bearing a child, diverge will only rarely occur.[135]

On these grounds, the
Constitutional Court struck down both provisions of the Transsexuals Act as
unconstitutional. In February 2009 the Austrian Administrative High Court also
held that mandatory SRS as a condition for legal recognition of gender identity
was unlawful.[136] There can be no doubt that, on the same grounds, the
requirements of SRS and infertility as contained in article 1:28 of the Dutch
Civil Code are an unjustified interference with the right to private life.
Their replacement with a human rights compliant way of regulating legal
recognition of gender identity is long overdue.

Second, the infertility
requirement, demanding that trans people are never again able to have a
biological child, deprives trans people of the right to found a family, a right
protected by the ECHR under article 12:

Men and women of marriageable age
have the right to marry and to found a family, according to the national laws
governing the exercise of this right.

As the European Court has pointed out, article 12 does not provide that
the right to found a family can be restricted on such grounds as “the
protection of health or morals” or “the protection of the rights
and freedoms of others.”[137] Instead the test
for the lawfulness of any measure which interferes with the right to found a
family is whether it is arbitrary or disproportionate.[138] The measure in this
case should be considered both arbitrary and disproportionate. For example, as
it targets trans people on the basis of gender identity it is discriminatory.
The right to nondiscrimination is protected by article 1 of the Dutch Constitution,[139] as well as several of the international treaties
to which the Netherlands is a party, including article 14 of the ECHR and
protocol 12 of the ECHR.[140] Moreover, the fact that transgender people are
able to freeze their semen or eggs before applying for recognition of their
gender identity, without this being interpreted by the courts as violating the
infertility requirement (see chapter I), shows that if there ever was a sound
reason for making recognition of gender identity conditional on infertility,
there certainly is none today.

The
Framework for Legal Recognition of Gender Identity in Other Countries

In recent years, a
number of countries around the world have introduced laws on recognition of
gender identity, in many cases starting from situations where there had been no
law in place to regulate the change of registered gender for trans people.
These recent laws, adopted more than two decades after article 1:28 of the
Dutch Civil Code came into force, reflect current understandings of the minimum
human rights requirements with which such laws must comply. They can thus serve
as useful models for a new Dutch law.[141]

One of the most progressive laws currently in existence is
the Portuguese law, which came into force on March 16, 2011. It enables trans
people to obtain new identity documents with their preferred gender and
forename, using a standardized administrative procedure. Applicants must be
Portuguese nationals of at least 18 years old. They must present a statement
from a multi-disciplinary team of experts to the effect that they have been
diagnosed with gender identity disorder.[142]
The law does not require hormone therapy, SRS, infertility or any other medical
interventions for the legal recognition of gender identity. Since same-sex
marriage has been legalized in Portugal, the law does not include a condition
that trans people must be unmarried or divorced.

Uruguay adopted a law to regulate changes of gender and
forenames in October 2009.[143]
Under this law, anyone may apply to have their registered gender and forenames
changed; the law does not prescribe a minimum age or a nationality requirement.
Applicants must demonstrate a discordance between their registered gender and
their gender identity, and must provide evidence, in accordance with procedures
set out by the law, that this discordance has existed for at least two years.[144]
Applications must be accompanied by a report from a multidisciplinary team
established for this purpose in the Directorate General of the civil status
registry.[145]
The law provides explicitly that SRS is not a requirement for changing
one’s registered gender or forenames. However, applicants who have had
SRS need not provide evidence that the discordance between their registered
gender and their gender identity has been present for at least two years.[146]

In Spain a new law came into force in March 2007, enabling
Spanish nationals age 18 or older to request that their registered gender and
forenames be changed in the Civil Register.[147]
This allows Spanish trans people to obtain a new National Identity Card (Documento Nacional de
Identidad, DNI), a document that must be carried by Spaniards at all
times. The law makes changes of the registered gender and forename in the Civil
Register conditional on the applicant providing adequate evidence of their
change in gender identity, in the form of a report from a certified doctor or
clinical psychologist stating that the applicant has been diagnosed with gender
dysphoria. They must also submit a medical report stating that they have
received medical treatment for at least two years to adapt their physical
characteristics to those of the preferred sex. Such treatment need not,
however, include SRS. Moreover, medical treatment is not required where reasons
of health or age preclude such treatment.[148]
There is no requirement of infertility, and no requirement that transgender
people must be unmarried or divorced, same-sex marriage having been legalized
in Spain in 2005.

In the United Kingdom
the Gender Recognition Act 2004 came into force on April 4, 2005.[149] It enables transgender people to apply for a
Gender Recognition Certificate (GRC), which in turn allows applications to
obtain a new birth certificate.[150] Applicants must be at least 18 years old.[151] Applicants need not be British nationals:
applicants who have changed their gender under the laws of another country can
obtain a Gender Recognition Certificate if the country in question is on a
pre-approved list.[152] There are no requirements of hormone therapy,
SRS, infertility or other medical conditions of any kind. However, applications
must include a statutory declaration by the applicant that he or she has lived
in the desired gender for at least two years and intends to continue to do so
until death; a report from a registered medical practitioner or a registered
psychologist practicing in the field of gender dysphoria that includes details
of the applicant’s diagnosis of gender dysphoria; and another medical
report from a registered medical practitioner. Where the applicant has
undergone or is undergoing or has been prescribed treatment for the purpose of
modifying sexual characteristics, either or both of the reports by the medical
practitioner(s) and/or psychologist must include details of such treatment.[153] People who are either married or in a civil
partnership when they apply are issued with an interim GRC. They can obtain a
full GRC by means of a simplified procedure if their marriage or civil
partnership comes to an end through divorce, annulment, or the death of their
spouse or civil partner.[154]

In some cases, countries
without a specific law on changes of gender and forenames have nevertheless
implemented the relevant procedures in a progressive manner. In Hungary there
are no express legal provisions regulating changes of gender and forenames.
However, it is established practice for trans people wishing to change their
registered gender and name to submit a request to this effect to the Ministry
of Interior. Such requests are accompanied by an expert opinion prepared by a
forensic psychologist or psychiatrist, and a medical record from a urologist or
gynecologist. The Ministry of Interior prepares an opinion on the basis of the
submitted documents. This opinion is evaluated by the Ministry of Health; if it
deems the request well-founded, it sends a resolution to this effect to the
registrar of birth certificates, who amends the applicant’s birth
certificate. Neither surgery nor infertility are imposed as conditions for
changing one’s registered gender and forenames.[155]

The
Yogyakarta Principles

In creating a new legal framework for the recognition of
trans people’s gender identity, the Netherlands must at a minimum replace
the requirements of SRS and infertility with requirements that respect trans
people’s human rights. It would represent significant progress if the
Netherlands were to follow the example of countries like Portugal and the
United Kingdom by substituting a diagnosis of gender dysphoria for the current
requirements of SRS and infertility. The decision by an individual transgender
person of whether in fact to undergo SRS would then be restored to its proper
domain, namely that of the health and wellbeing of the individual in question.
It would be left to the gender teams and transgender people to come to a
decision in each individual case whether SRS is medically necessary and in the
best interest of the person in question. The legal question of recognition of
the gender identity of trans people would be separated, as it should be, from
the medical question of whether SRS is necessary to restore the individual to
health.

However, while such a framework would indeed signify
progress compared to the current conditions in Dutch law for legal recognition
of gender identity, the Netherlands should consider going one step further by
ensuring that legal recognition of gender identity is no longer made dependent
on a diagnosis of gender identity disorder (or gender dysphoria). With gender
identity disorder classified as a mental disorder in both the DSM and ICD,
making legal recognition of gender identity dependent on such a diagnosis is
needlessly restrictive.

The Netherlands could derive relevance guidance in this
regard from the Yogyakarta Principles on the
Application of International Human Rights Law in Relation to Sexual Orientation
and Gender Identity.[156]
The Yogyakarta Principles were launched in 2007 by an eminent group of
international law experts following a 2006 meeting analyzing how
internationally recognized human rights standards should apply to issues of
sexual orientation and gender identity.[157]
While the Yogyakarta Principles are not themselves legally binding, they have
been endorsed by human rights experts and governments alike, including the
Dutch government.[158]
In March 2008 the then Minister of Foreign Affairs, Maxime Verhagen, said in a
statement to the UN Human Rights Council:

The Dutch government subscribes to the Yogyakarta
Principles on the application of international human rights law in relation to
sexual orientation and gender identity. I call upon other States to embrace
these principles as well.[159]

This statement to the Human Rights Council did not
acknowledge that article 1:28 of the Dutch Civil Code contravenes principle 3
of the Yogyakarta Principles. Principle 3 concerns the right to recognition
before the law. It is unequivocal in its rejection of SRS or infertility as
requirements for legal recognition of gender identity, stating:

Everyone
has the right to recognition everywhere as a person before the law. Persons of
diverse sexual orientations and gender identities shall enjoy legal capacity in
all aspects of life. Each person’s self-defined sexual orientation and gender
identity is integral to their personality and is one of the most basic aspects
of self-determination, dignity and freedom. No one shall be forced to undergo
medical procedures, including sex reassignment surgery, sterilization or
hormonal therapy, as a requirement for legal recognition of their gender
identity.No status, such as marriage
or parenthood, may be invoked as such to prevent the legal recognition of a
person’s gender identity. No one shall be subjected to pressure to
conceal, suppress or deny their sexual orientation or gender identity.
[Emphasis added.]

The Yogyakarta Principles include the following
recommendations to states in relation to principle 3:

States shall:

A.ensure that all
persons are accorded legal capacity in civil matters, without discrimination on
the basis of sexual orientation or gender identity, and the opportunity to
exercise that capacity, including equal rights to conclude contracts, and to
administer, own, acquire (including through inheritance), manage, enjoy and
dispose of property;

B.take
all necessary legislative, administrative and other measures to fully respect
and legally recognise each person’s self-defined gender identity;

D.ensure
that such procedures are efficient, fair and non-discriminatory, and respect
the dignity and privacy of the person concerned;

E.ensure
that changes to identity documents will be recognised in all contexts where the
identification or disaggregation of persons by gender is required by law or
policy;

F.undertake
targeted programmes to provide social support for all persons experiencing
gender transitioning or reassignment.

Recommendations B and C
give primacy to trans people’s ability to self-define their gender
identity. In line with the commitment expressed by the Dutch government
to the Yogyakarta Principles, the government should explore ways to create a
new framework for legal recognition of gender identity that takes trans
people’s self-identified gender identity as its starting point.
Transgender advocacy groups recognize that there may be legitimate reasons to
introduce some conditions modifying the underlying principle, but believe that
trans people themselves should have primary say over their legal gender
identity. Such conditions may be necessary to protect the interests of the
state by ensuring that people do not change their legal gender identity at a
whim or for reasons other than self-identifying gender motivation, such as to
hide their registered legal identity for fraudulent purposes. Conditions may
also be necessary to protect some people from themselves, for example, people
who are not transgender but who suffer from mental health problems that may
lead them to try to change their legal gender identity where this is not in
fact in their own interest.

One way to guard against possible fraudulent or undesirable
changes of legal gender would be to build in a delay between trans people’s
applications to change their registered gender and the implementation of such a
request. Applicants might, for example, be asked to deposit an affidavit,
counter-signed by a witness, to the effect that they are of sound mind and that
they wish to change their registered gender. The request would only be acted
upon after the elapse of a certain minimum period of time, and only after the
person in question has deposited a second affidavit, stating that they stand by
their desire to change their registered gender.[160]
A reasonable period of delay might be six months, based on the fact that the
current proposed revision for the diagnosis of gender dysphoria includes a
requirement of a “marked incongruence between one’s
experienced/expressed gender and assigned gender, of at least 6 months duration.”
The Sexual and Gender Identity
Disorders Work Group of the American Psychiatric Association is responsible
for the proposed diagnosis and states that “a lower-bound duration of 6
months would be unlikely to yield false positives.”[161]

It should be noted that under such proposals transgender
people would still be required to go through a diagnostic trajectory to have
SRS, and medical protocols would still need to be adhered to in relation to
SRS. Proposals for legal gender recognition based on the Yogyakarta Principles
argue for a separation between the medical and legal questions tied to trans
people’s gender identity. Such proposals do not argue that individuals
must be able to demand access to SRS based solely on the basis of their
self-identified gender identity. Medical professionals would still have an
important role to play in decisions to use medical interventions to assist
trans people, especially interventions of an irreversible nature such as SRS.
However, Human Rights Watch concurs with the human rights commissioner of the
Council of Europe that the current classification of gender identity disorder
(or gender dysphoria in the proposed revision of the DSM) as a mental disorder
should be reconsidered, in close consultation with transgender advocacy groups.
The commissioner has said:

[M]any international and national medical classifications
impose the diagnosis of mental disorder on transgender persons. Such a
diagnosis may become an obstacle to the full enjoyment of human rights by
transgender people especially when it is applied in a way to restrict the legal
capacity or choice for medical treatment.[162]

Alternative classifications should be explored in close
consultation with transgender persons and their organisations. From a human
rights and health care perspective no mental disorder needs to be diagnosed in
order to give access to treatment for a condition in need of medical care.[163]

Children

In the Netherlands, all
transgender children are referred to the gender clinic at the Free University
in Amsterdam. Transgender children from the age of 12 may be prescribed
hormones that delay the onset of puberty. The purpose of administering these
hormones is to suppress the bodily changes brought about by puberty, thus
giving the child more time to discover what their gender identity is. The
effects of these hormones are fully reversible: once the child stops taking
these particular hormones, puberty resumes its normal course.[164]

From the age of 16, transgender children may be prescribed masculinizing
or feminizing hormone therapy. As is the case for adults, the effect of these masculinizing
or feminizing hormones is only partially reversible: some of the effects of
these hormones can be reversed only by means of operations. The lower age limit
of 16 for the administration of these hormones is not an absolute limit: where
individual circumstances so demand, a child of 15 may be prescribed masculinizing/feminizing
hormones. For both puberty delaying and masculinizing/feminizing hormones, both
parents of the child up to age 18 need to give their consent. This is despite
the fact that in ordinary circumstances, article 7:447 of the Civil Code
provides that children from the age of 16 are legally capable of giving consent
to medical treatment, while article 7:465 of the Civil Code leaves open the
possibility that children from the age of 12 can give such consent if they are
deemed capable of understanding their own interests.[165]However, the regulatory framework currently
applying to transgender children receiving medical assistance in relation to
their diagnosed gender identity disorder is the framework governing medical
experimental studies. For such studies more stringent rules apply than for
ordinary medical treatment, including the need for parental consent from both
parents in the case of child participants in such studies. In some cases, this
leaves transgender children in a very difficult position. A 19-year-old woman
said, talking about the time when she was a child:

I have known since I was very young
that I was different. For me it was perfectly normal that I put on girls’
clothes, but other people did not think it was normal. My parents were very
upset when I told them I was a girl, especially my father, he was angry. I started
taking hormones one week after my 18th birthday. If it had been up
to me, I would have started much earlier, but I couldn’t, because my
parents did not agree with each other whether they should give permission for
me to start taking hormones. My father did not want me to be a girl. The
psychologist tried to persuade my parents to give permission when I was 17,
they knew I would do it anyway as soon as I turned 18, but my dad
wouldn’t give in.[166]

Article 1:28 of the Dutch Civil Code contains no minimum age
for applications for legal recognition of a sex change. The reasoning provided
was as follows. On the one hand, it was noted that only in very rare cases
would children be eligible to apply for legal recognition of their gender
identity, due to the law’s medical requirements: the legislature noted
that in the vast majority of cases hormone treatment and surgery would only be
available to adults. However, at the same time it was noted that, “There
may be cases, albeit very rare, where, even at a young age, waiting any longer
with the administrative change may hinder and harm the person’s personal
development.”[167]
On that basis, the inclusion of a minimum age was deemed inadvisable.

In practice, transgender children in the Netherlands have
been unable to obtain legal recognition of their gender identity, since
recognition is dependent on SRS and only adults are eligible for SRS. The
protocols used by the two gender teams in the Netherlands follow the Standards
of Care in this regard, and apply this rule to all transgender children without
exception.[168]According to the director of the Amsterdam
gender team, “in light of the complexity of puberty and the physical and
mental growth of adolescents, the Amsterdam gender team does not consider SRS
and its irreversible consequences to be advisable before the age of 18.”[169]
As a result, while the legislature foresaw the possibility of harm being done
to the development of transgender children by denying them access to the
possibility of legal recognition of their gender identity, in practice article 1:28
and medical protocols combine in such a way as to rule out all possibilities of
avoiding such harm. Seventeen-year-old Matthew told Human Rights Watch:

I’ve really always known that I’m a boy. I
didn’t know about transgender people, I didn’t know exactly what it
was that I had. But I fantasized all the time about becoming a boy, I asked God
every night if he could turn me into a boy. At school I would tell other
children that I had had an accident and that that had left me with a
girl’s body. In primary school everyone treated me as a boy, but it
became more difficult in secondary school, when my body started changing. When
I was 14 I went to the VU [university hospital] and when I was 16 I started
taking hormones. But my papers still say I am a girl. For me, that person
doesn’t exist anymore. I wish they could at least give you some kind of
temporary papers, if you can’t change your papers officially yet. I have
been using a boy’s name for years, it would make sense if they let your
change your papers once you start living with a new name.[170]

As in the case of adults, Human Rights Watch supports reform
of article 1:28 of the Civil Code in such a way as to separate medical and
legal procedures for transgender children. Legal recognition of the gender
identity of transgender children should not be conditional on any form of
medical intervention. For children, as for adults, making legal recognition of
their gender identity conditional on SRS and infertility is an unjustified
interference with their right to physical integrity.

Considerations that should inform a new legal framework for
legal recognition of gender identity in relation to transgender children must
include the obligations of the Netherlands under the Convention on the Rights
of the Child. Accordingly, decisions about legal recognition of the gender
identity of transgender children should be guided exclusively by the best
interests of the child, in accordance with article 3 of the convention:

In
all actions concerning children, whether undertaken by public or private social
welfare institutions, courts of law, administrative authorities or legislative
bodies, the best interests of the child shall be a primary consideration.[171]

Minimum
age limits for medical interventions such as SRS should not be used to bar
transgender children from the possibility of changing their identity papers,
because doing so means inflicting harm on children in cases where providing the
child with new identity papers would be in the child’s best
interest.

In
determining the child’s best interest, the child itself should be heard,
in accordance with article 12 of the Convention on the Rights of the Child:

1.
States Parties shall assure to the child who is capable of forming his or her
own views the right to express those views freely in all matters affecting the
child, the views of the child being given due weight in accordance with the age
and maturity of the child.

2.
For this purpose, the child shall in particular be provided the opportunity to
be heard in any judicial and administrative proceedings affecting the child,
either directly, or through a representative or an appropriate body, in a
manner consistent with the procedural rules of national law.

The Committee on the Rights of the Child has clarified the
relation between articles 3 and 12 of the convention:

The
purpose of article 3 is to ensure that in all actions undertaken concerning
children, by a public or private welfare institution, courts, administrative
authorities or legislative bodies, the best interests of the child are a
primary consideration. It means that every action taken on behalf of the child
has to respect the best interests of the child.... The Convention obliges
States parties to assure that those responsible for these actions hear the
child as stipulated in article 12. This step is mandatory.[172]

A new legal framework for the legal recognition of trans
people’s gender identity should make allowance for the fact that it may
be in the best interest of some transgender children to change their legal
gender before they reach the age of adulthood. The inclusion of a minimum age
in such a legal framework should be avoided; instead, the individual
circumstances of each child should determine whether it is in the child’s
best interest to change their legal gender. Procedures created by a new legal
framework to replace article 1:28 of the Civil Code should include a mechanism
for the transgender child to give his or her opinion on the need to change his
or her legal gender. In determining whether changing the child’s legal
gender is indeed in the best interest of the child, the child’s freely
expressed opinion should be given due weight.

Provision should also be made for transgender children to be
allowed to change their forenames, either at the same time as the change of
their legal gender, or at an earlier stage than the change of legal gender.
Here too, decisions should be guided by the best interests of the child. The
child should be given an opportunity to make his or her views known, and the
proceedings designed so as to acknowledge that “as children acquire
capacities, so they are entitled to an increasing level of responsibility for
the regulation of matters affecting them.”[173]

V. Legal Recognition of the
Gender Identity of Gender Variant People

The transgender community comprises not only transsexual
people, but also cross-dressers, transvestites, transgenderists and gender
variant people (who sometimes self-identify as genderqueers). The commissioner
for human rights at the Council of Europe has noted that, despite this
diversity, “Many legal frameworks only seem to refer to transsexual
persons, leaving out a decisive part of the [transgender] community.”[174]
The Dutch Civil Code is a case in point: while it makes provision for the
gender recognition of transsexual people, albeit in a deeply flawed manner, it
makes no reference at all to gender variant people, whose gender identity is
something other than male or female. Whether their gender identity lies
somewhere on the continuum between male and female, or outside the realm
defined by male and female identities, the law makes no provision for the
recognition of their gender identity. Only people whose gender identity fits
within the male-female dichotomy around which the legal framework is
constructed are in a position to have a legal gender identity that matches
their own self-identified identity.

This situation is at variance with the Yogyakarta
Principles, endorsed by the Dutch government. As was discussed in chapter IV, principle
3 of the Yogyakarta Principles affirms that people’s self-identified
gender identity “is integral to their
personality and is one of the most basic aspects of self-determination, dignity
and freedom.” Principle 3 does not restrict the type of gender identities
that deserve recognition; in particular, the principle is not limited to male
and female gender identities. In so far as principle 3 emphasizes that
“[n]o one shall be subjected to pressure to conceal, suppress or deny
their … gender identity,” legal frameworks that do not allow for
legal recognition of gender identities other than male or female inevitably
mean that gender variant people are in effect required to suppress or deny their gender identity in the public
sphere.

Recommendations B and C of the
Yogyakarta Principles, as discussed above, encourage states to consider measures
that allow all persons to define their own gender identity. In particular,
states should:

B. take all necessary legislative, administrative and other
measures to fully respect and legally recognise each
person’s self-defined gender identity;

C. take all necessary legislative, administrative and other
measures to ensure that procedures exist whereby all state-issued identity
papers which indicate a person’s gender/sex—including birth
certificates, passports, electoral records and other documents—reflect the person’s
profound self-defined gender identity[emphasis
added].[175]

The changes to the legal
framework for gender recognition discussed in the previous chapter would help
transsexual people, whose gender identity is opposite to that of their sex
assigned at birth, by enabling them to obtain legal recognition of their gender
identity without having to satisfy conditions that violate their human rights.
But these changes would not aid gender variant people who do not identify as
transsexual: they would continue to be presented with a choice between two
options, male and female, that the law considers to be mutually exclusive,
while neither in fact accurately fits their gender identity.

In line with its endorsement of the Yogyakarta Principles,
the Netherlands should seek to address the specific situation of gender variant
people. One way it could do so is by introducing a possibility for gender
variant people to suppress the gender marker on their official documents; or another
possibility would be to introduce a third gender marker.[176]

Suppressing
the Gender Marker on Identity Documents

One strategy that would go some way towards recognizing the
gender identity of gender variant people would be to introduce a possibility
for gender variant people to suppress the gender marker on their identity
documents. Such a strategy would, in effect, create a third possibility besides
the two currently recognized genders of male and female, to accommodate all
gender identities whose common characteristic is that they are neither male nor
female.

Introducing this possibility for gender variant people
should be done in such a way to respect the right of transsexual people to
identify as male or female: while the possibility to suppress the gender marker
should be available to those people whose gender identity does not fit the
male/female dichotomy, no transsexual person should have to choose between the
gender marker of their sex assigned at birth or suppressing the gender marker
altogether. More generally, even if the possibility of suppressing the gender
marker were introduced, it would have to remain a genuine choice for gender
variant people. Making gender variant people more visible and more easily
distinguishable on the basis of their gender identity may leave them more
vulnerable to discriminatory attitudes and practices. While individual gender
variant persons may decide that such a risk is a price worth paying for no longer
having to identify as either male or female, no one should be exposed to such
risks against their will.

Since it is not possible to know at birth that a child is
transgender, as long as the general sex registration system is maintained all
newborn babies would continue to be registered as either boys or girls on the
basis of their external sex organs (apart from intersex children, for whom
there already is a special provision in the Dutch Civil Code).[177]
The possibility of suppressing the gender marker on one’s identity
documents would then be open to gender variant people later in life, on the
same basis and under the same conditions as the possibility for transsexual
people to change their legal gender from male to female or vice versa.

The Dutch government could take its cue in this regard from
the Australian Human Rights Commission, which has recommended that a “person over the age of 18 years should be able to choose to have an
unspecified sex noted on documents and records.”[178] Australian nationals
already have the option of applying for a Document of Identity, valid for a
maximum of three years, with the gender marker field left blank (as opposed to
Australian passports, which carry a F or M gender marker). The Australian
Document of Identity complies with International Civil Aviation
Organisation (ICAO) regulations: it is a widely, although not universally,
recognized travel document.[179] In contrast, ICAO regulations for
passports stipulate that passports must contain information about the sex of the
bearer, which may be given as either M, F or X (for unspecified): the field
cannot be left blank.[180]

Article
8 of the ECHR and the Position of Gender Variant People

In 2007 the Dutch Supreme Court upheld decisions by the
lower courts in the case of a Dutch citizen who had applied to have his birth
certificate amended in such a way as to suppress the information about his sex.[181]
In effect, the applicant had asked the courts to recognize a third gender, next
to the two categories of male and female. The applicant, who had been born as a
man and who had twice relied on article 28 of the Civil Code to change his
legal gender from male to female and then back to male, had come to the
conclusion that he identified as “belonging to no sex” (“niet geseksueerd”).
The Supreme Court upheld the decisions by the lower court to reject the
application. In doing so, the court appealed to the general interest, and
referred to the need to balance the interests of the individual against the
interests of the state and society at large. The court held that it was the
interests of society at large in registering every individual as belonging to
one of two sexes that prevailed.

Although the person in question has decided not to take
their case further, it raises clearly arguable issues of compatibility with the
ECHR. It could be argued that the refusal by the state to comply with the
request to suppress information about the person’s sex failed to respect their
right to privacy under article 8. The European Court has held that under
article 8 states are under an obligation to give legal recognition to the
gender identity of transsexuals who have undergone SRS.[182]
However, the court has not had occasion to address
the question whether article 8 entails a positive obligation on states parties
to take measures to legally recognize the gender identity of persons whose
gender identity is neither male nor female. Nevertheless, guidance about the
position of gender variant people can be derived from the court’s case
law in relation to so-called post-operative transsexual people.

The European Court has defined
“private life” as “a
broad term not susceptible to exhaustive definition. It covers the physical and
psychological integrity of a person. It can sometimes embrace aspects of an
individual and social identity. Elements such as, for example, gender
identification, name, and sexual orientation and sexual life fall within the
personal sphere, protected by Article 8.”[183]

The right to respect for
private life has two elements: a negative obligation not to interfere with
people’s private life, and a positive obligation to take steps to protect
specific elements of the personal sphere whose protection is guaranteed by
article 8. In relation to positive obligations on the part of the state
entailed by article 8, the court has noted that states parties have a wide
margin of appreciation:

… this is an area in
which the Contracting Parties enjoy a wide margin of appreciation in
determining the steps to be taken to ensure compliance with the Convention with
due regard to the needs and resources of the community and of
individuals…[184]

The meaning of the term
“respect” in article 8(1) is not fixed but must be determined on a
case-by-case basis; in each case, the outcome depends on the proper balance
between the general interest and the interest of the individual:

The Court recalls that the notion of “respect”
as understood in Article 8 is not clear cut, especially as far as the positive
obligations inherent in that concept are concerned: having regard to the
diversity of practices followed and the situations obtaining in the Contracting
States, the notion's requirements will vary considerably from case to case and
the margin of appreciation to be accorded to the authorities may be wider than
that applied in other areas under the Convention. In determining whether or not
a positive obligation exists, regard must also be had to the fair balance that
has to be struck between the general interest of the community and the
interests of the individual, the search for which balance is inherent in the
whole of the Convention...[185]

In a series of cases, the court initially held
that the failure by a state party to give legal recognition to the gender
identity of transsexual people did not amount to a violation of article 8,
arguing that the matter fell within states parties’ margin of
appreciation.[186] In 2002, in the case of Christine
Goodwin v. the United Kingdom, the court
came to the opposite conclusion, arguing that article 8 entailed a positive
obligation on states parties to give legal recognition to the gender identity
of transsexual persons who had undergone SRS. In explaining its departure from
its previous case law, the court referred to a number of determining factors.
On the one hand, the court found it significant “that
transsexualism has wide international recognition as a medical condition for
which treatment is provided in order to afford relief.”[187] It also
referred to “the clear and uncontested evidence of a continuing
international trend in favour not only of increased social acceptance of
transsexuals but of legal recognition of the new sexual identity of
post-operative transsexuals.”[188] Furthermore,

… the very essence of
the Convention is respect for human dignity and human freedom. Under Article 8
of the Convention in particular, where the notion of personal autonomy is an
important principle underlying the interpretation of its guarantees, protection
is given to the personal sphere of each individual, including the right to
establish details of their identity as individual human beings.[189]

In terms of the balancing of
the state’s interest against the interests of the individual, the court
noted:

No concrete or substantial
hardship or detriment to the public interest has indeed been demonstrated as
likely to flow from any change to the status of transsexuals and, as regards
other possible consequences, the Court considers that society may reasonably be
expected to tolerate a certain inconvenience to enable individuals to live in
dignity and worth in accordance with the sexual identity chosen by them at
great personal cost.[190]

Since there are no significant
factors of public interest to weigh against the interest of this individual
applicant in obtaining legal recognition of her gender re-assignment, it reaches
the conclusion that the fair balance that is inherent in the Convention now
tilts decisively in favour of the applicant. There has, accordingly, been a
failure to respect her right to private life in breach of Article 8 of the
Convention.[191]

Although the applicant in Goodwin was a trans woman who had
already undergone SRS, and so the inferences to be drawn from the case should
be tempered by that, nevertheless, a number of guiding principles still can be
gleaned from this and other cases with respect to a potential duty to give
legal recognition to the gender identity of gender variant people.

The court has observed that the
European Convention is “a living instrument, to be interpreted in the
light of present-day conditions.”[192]Accordingly,
the convention must be interpreted and applied in a “dynamic and
evolutive” manner:

… since the Convention is first and foremost
a system for the protection of human rights, the Court must have regard to the
changing conditions within the respondent State and within Contracting States
generally and respond, for example, to any evolving convergence as to the
standards to be achieved…. It is of crucial importance that the
Convention is interpreted and applied in a manner which renders its rights
practical and effective, not theoretical and illusory. A failure by the Court
to maintain a dynamic and evolutive approach would indeed risk rendering it a
bar to reform or improvement.[193]

Taking into account this need for a
“dynamic and evolutive approach” to the interpretation of the convention,
gender variant people’s conviction not to belong to either of the two
sexes arguably falls within the personal sphere protected by article 8 of the
ECHR. If a state therefore does not take steps to ensure that people
whose gender identity is neither male nor female are entitled to legal recognition
of their gender identity, this would be a restriction on an aspect of their
private life.

However, it does not necessarily
follow that such a restriction would be incompatible with the ECHR. In
view of the court’s reasoning in the case of Goodwin, the restriction would be incompatible if it was established
that there was broad international medical recognition of gender variant
identities, plus a trend towards legal recognition of this phenomenon.

In terms of the first element of medical recognition,
arguably there is indeed the beginning of a trend towards recognition of these
gender identities. This is apparent, for example, from the fact that the
revision proposed by the DSM for the diagnosis of gender dysphoria avoids
references to a male-female dichotomy, and talks instead of “the other gender (or some alternative gender different from
one’s assigned gender).” The Work Group provides the following
explanation for this approach:

Furthermore, in the DSM-IV, gender
identity and gender role were described as a dichotomy (either male or female)
rather than a multi-category concept or spectrum… The current formulation
makes more explicit that a conceptualization of GI [gender identity] acknowledging
the wide variation of conditions will make it less likely that only one type of
treatment is connected to the diagnosis. Taking the above regarding the
avoidance of male-female dichotomies into account, in the new formulation, the
focus is on the discrepancy between experienced/expressed gender (which can be
either male, female, in-between or otherwise) and assigned gender (in most
societies male or female) rather than cross-gender identification and
same-gender aversion.[194]

Once the notion of a gender continuum, or gender spectrum,
is taken at face value, obligatory sex registration on the basis of two
mutually exclusive categories of male and female is seen to be untenable.

In terms of the second element of a trend towards legal
recognition of gender variant identities, no such clear trend is currently
identifiable. However a noticeable development is the introduction by Nepal of
a third gender category which paves the way for the issuance of
citizenship certificates to Nepali citizens on the basis of this third gender.
This followed a Supreme Court ruling ordering the state to “amend the new
constitution so as to guarantee nondiscrimination on the grounds of gender
identity.” The court argued:

As the people with a third type of gender identity, other
than male or female, and different sexual orientation are also Nepali citizens
and natural persons, they should be allowed to enjoy the rights with their own
identity as provided by the national laws, the Constitution, and international
human rights instruments. It is the responsibility of the state to create an
appropriate environment and make legal provisions accordingly for the enjoyment
of such rights. It cannot be construed that only “men” and
“women” can enjoy such rights and other people cannot enjoy them
solely because they have a different gender identity and sexual orientation.[195]

The extent to which this ruling is being implemented is
unclear.

India too has taken steps towards the legal recognition of
the gender identity of gender variant people. Its 2011 decennial census allowed
the response “other” as well as male or female as a valid response
to the question about one’s sex on the census form.[196] In 2009 the Supreme Court of Pakistan
ordered the government to recognize a separate gender for members of
Pakistan’s hijra community, who are transgender or intersex, and to issue
national identity cards to hijras showing a distinct gender.[197]
As was noted above, the Australian Human Rights Commission has recommended that
Australia take steps to recognize the gender identity of gender variant people,
by allowing people “to have an unspecified sex noted on
documents and records.”[198]

As to the weighing of the public interests
against the interests of gender variant individuals, it should be noted that, in contrast to the situation of transsexual people
discussed by the court in Christine Goodwin
v. the United Kingdom,
introducing a third category besides male and female could entail what might be deemed
“concrete or substantial hardship or detriment to the public interest.”For
example, whenever the law currently allows for men and women to be treated
differently, despite the general prohibition on discrimination on the grounds
of sex, the law would need to be rewritten to take account of this third
category, and across societies measures would be required to adjust to this new
legal framework. Examples would include recruitment processes for jobs where
the gender of the person is shown to matter; or prescribing separate spaces or
facilities for women and men such as prisons, detention facilities, and
emergency refuges and safe houses for women; regulating access to sports
competitions on the basis of gender; and security protocols involving body
searches.

So although states can opt to grant
legal recognition of the gender identity of gender variant people, given the
current state of international practice, it would be unlikely that article 8 imposes
a positive obligation to create space in the legal system for gender identities
other than male and female.

Scope
for Legal Reform in the Netherlands

The fact that mandatory sex registration with reference to
male/female categories is not seen to be a violation of the human rights of
gender variant people does not preclude the Netherlands, or indeed other
states, from exploring possibilities for giving legal recognition to the gender
identity of gender variant people, in accordance with principle 3 of the
Yogyakarta Principles. Legal reform to this effect would be a welcome
development in offering protection to a group of people who tend to be both
invisible and vulnerable to discrimination. As transgender researcher Paul
Vennix told Human Rights Watch:

The state should acknowledge that there are people whose
gender identity is neither exclusively male nor exclusively female. In a sense,
these people are even more vulnerable than transsexual people, because at the
end of the day, transsexual people fit into society’s generally accepted
gender dichotomy. Even if their gender identity is opposite to that of their
birth sex, ultimately they affirm society’s expectations about
appropriate gender roles. It is more difficult to position yourself in between
the two sexes. But there are people who will do this anyway. The law, by
denying legal recognition to these people’s gender identity, cannot
regulate how people identify. The only thing the law achieves is to exclude
these people from society, shut them out from the labor market, and isolate
them socially.[199]

In the particular case of the Netherlands, possibilities
could be explored to take article 1:19d and article 1:24 of the Civil Code as
the starting point for legal reform aimed at providing legal recognition of the
gender identity of gender variant people. Article 1:19d was incorporated into
the Civil Code for the specific purpose of providing for intersex children,
whose biological sex at birth is ambiguous. Article 1:19d provides that in
cases where it is impossible to determine the child’s sex, a temporary
birth certificate must be prepared, which must be replaced within three months
with a definitive birth certificate stating the child’s sex. If three
months after the birth it is still impossible to determine the child’s
sex, a definitive birth certificate must be drawn up which states that it has
been impossible to determine whether the child is male or female. While it
would appear that no definitive birth certificate in those terms has ever been
drawn up, the provision in the Civil Code nevertheless
demonstrates that the current legal framework does already allow for the
possibility of people growing up in the Netherlands without a registered gender.[200]

Article 1:24 of the Civil Code makes
provision for the correction of mistakes in records included in the civil
register. The Supreme Court has held that gender variant people cannot rely on
article 1:24 to have their birth certificate “corrected” so as to
remove the gender marker without replacing it with the opposite gender marker.
The court argued that to use article 1:24 in this way would be to go against
the legislature’s original intent and the logic of the Civil Code, which
is based on the notion that everyone is either a man or a woman. With reference
to article 1:19d, the Supreme Court held that a distinction must be made
between on the one hand a birth certificate which states that it has not been
possible to determine the person’s sex, and on the other hand a birth
certificate without any
information about the person’s sex. The court held that while article 1:19d
provides for the former circumstance, it does not admit the latter.[201]While the Supreme Court has thus blocked off
this avenue towards the gender recognition of gender variant people on the
basis of an appeal to the legislature’s original intent, it would be for the legislature to initiate reform of the
Civil Code aimed at fulfilling the promise contained in the Dutch
government’s endorsement of the Yogyakarta Principles.

Acknowledgments

This report was researched and written by Katinka Ridderbos,
consultant for Human Rights Watch. The report was edited by Graeme Reid,
director of the LGBT Rights Program at Human Rights Watch, Boris Dittrich,
advocacy director of the LGBT Rights Program, Joseph Amon, director of the
Health and Human Rights Program, Zama Coursen-Neff, deputy director of the
Children’s Rights Division, Gauri van Gulik, researcher in the
Women’s Rights Division, Ben Ward, deputy director of the Europe and
Central Asia division, and Joseph Saunders, deputy program director. Aisling
Reidy, senior legal advisor, provided a legal review. Additional editorial
assistance was provided by José Luis Hernández, associate in the
LGBT Rights Program. Heather Doyle, director of the Sexual Health and Rights
Project at the Open Society Foundation, provided valuable feedback. Johanna
Boersen translated sections of the report into Dutch.

Human Rights Watch collaborated with the Transgender Netwerk
Nederland for this report: we are indebted in particular to Thomas Wormgoor and
Vreer for the assistance they provided during the research phase, and their
detailed and helpful comments on drafts of the report. We would also like to
thank Transvisie and the Stichting Patientenorganisatie Transvisie and their
staff, including Bastiaan Franse and Simon Huges, for the assistance they
provided.

Human Rights Watch would also like to thank Mauro Cabral,
Paisley Currah and Justus Eisfeld, members of the Advisory Committee of Human
Rights Watch’s LGBT Program, for their detailed comments on earlier
drafts of the report.

Human Rights Watch gratefully acknowledges the support of
the Open Society Foundations.

Appendix:
Relevant Provisions of Book 1 of the Dutch Civil Code

Article 4

1 Any person shall have the forenames given to him or her on his or her birth
certificate.

2 The Registrar of Births, Deaths, Marriages, and Registered Partnerships shall
refuse to include any forenames in the birth certificate which are
inappropriate or correspond to existing surnames unless these are also
customary forenames,

4 A change of forenames may be ordered by the district court on the application
of the person involved or by his or her legal representative. The change is
effected by the addition of the subsequent amendment, in the court order, to
the birth certificate in accordance with Article 20a, paragraph 1. In the case
of a change of forenames of a person born outside the Netherlands, the district
court making the order shall, where necessary ex office, order either
the registration of the birth certificate or of the instrument or decision
referred to in Article 25g, paragraph 1, or of the order referred to in Article
25c.

Article 19d

1 Where there is doubt as regards the sec of the child, a birth certificate shall
be drawn up stating that the sex of the child could not be established.

2 Within three months of the birth or in case of death, within such a period, on
the occasion of the declaration of death, a new birth certificate stating the
sex of the child shall be drawn up and the instrument referred to in paragraph
1 shall be cancelled, if the sex has meanwhile been established, in accordance
with a medical certificate lodged in respect thereof.

3 If no medical certificate is lodged within the period mentioned in paragraph 2
or where it appears from the lodged medical certificate that the child’s
sex could not be established, a new birth certificate shall state that the sex
of the child could not be established.

Article 24

1 On the application of any interested person
or of the public prosecution service the district court may order the addition
of an instrument which is lacking in the register of the Registry of Births,
Deaths, Marriages and Registered Partnerships or of a subsequent record, or a
correction to an instrument appearing therein or in a subsequent instrument which
is incomplete or contains a mistake. When ordering a correction of an
instrument or of a subsequent record which is incorrect or contains a mistake,
the district court may also order the same correction as regards an instrument
or subsequent record in respect of the same person or his or her descendants
which is recorded in the registers of the Registry of Births, Deaths, Marriages
and Registered Partnerships outside its jurisdiction.

2 The clerk of the judicial body before which the case was last pending shall
send a true copy of the court order to the Registrar of Births, Deaths,
Marriages and Registered Partnerships of the municipality in whose registers
the instrument or a subsequent record is or should have been recorded no sooner
than three months since the date of the decision. Where such municipality no
longer exists, he or she shall send the true copy of to the Registrar in whose
record office the registers of the Registry of Births, Deaths, Marriages and
Registered Partnerships of the municipality which no longer exists are kept.

Article 28

1 Any Dutch national who is convinced to be of a different sex than that stated
in the birth certificate and whose body has been physically altered to the
desired sex, insofar as this is both possible and safe, may apply to the
district court for an order for a change of the sex mentioned on the birth
certificate, if such a person is recorded on the birth certificate as male and
will never be capable of fathering children or, if such a person is recorded on
the birth certificate as female, will never be capable of giving birth to
children.

2 For the purpose of the provisions in paragraph 1 and Articles 28a and 28b of
this book, a ‘birth certificate’ includes an instrument of
registration of a birth certificate drawn up outside the Netherlands or of a
decision referred to in Article 25c of this book.

3 person who does not possess Dutch nationality may make an application
referred to in paragraph 1, if he or she already had his or her residence in
the Netherlands for one or more years immediately preceding the application and
has a valid residence permit and, moreover, satisfies the conditions laid down
in paragraph 1. If the birth certificate is not registered in the registers of
the Registry of Births, Deaths, Marriages and Registered Partnerships in the
Netherlands, the district court shall also be requested to order registration
of the birth certificate in the register of births of the municipality of The
Hague.

Article 28a

1 Along with the application a true copy of the birth certificate must be lodged
and a certificate jointly signed by experts nominated by Regulation and issued
within six months of the date on which the petition is lodged, establishing:

the conviction of the
applicant to be of a different sex than that mentioned on the birth
certificate and the opinion of the expert with competence in respect
thereof that such a conviction may be regarded as of an enduring nature,
considering the period in which the applicant has lived as such and, where
possible, any other factors or circumstances to be stated therein;

whether and, if so, to what
extent the body of the applicant was physically altered to the desired
sex, insofar as possible and safe from a medical or psychological
viewpoint;

that the applicant is
recorded as male on the birth certificate and will never be able to father
children or, that the applicant is recorded as female on the birth
certificate and will never be able to give birth to children.

2
The part referred to in paragraph 1(a) need not be included in the certificate,
if the body of the applicant was already physically altered to the desired sex.

Article 28b

1 The application shall be granted if the district court considers that it has
been sufficiently established that the applicant has the conviction to be of a
different sex than that mentioned on the birth certificate that this conviction
may be considered to be enduring and that applicant satisfies the conditions
laid down in Article 28, paragraph 1.

2
When the district court grants the application for a change of the sex
mentioned, it may, when this is so requested, also order a change of the
applicant’s forenames.

Article 28c

1 A recorded change of sex shall have the effects arising from this book from the
date on which the Registrar of the Births, Deaths, Marriages and Registered
Partnerships adds a subsequent record to the birth certificate of the court
order to make an alteration.

2 A recorded change of sex shall not affect any legal familial ties which exist
on the date mentioned in paragraph 1 and any rights, powers and duties arising
there from which are based on this book. Applications in connection with
Article 157 and in connection with Article 394 of this book may also be made
after the date mentioned in paragraph 1.

Relevant
Provisions of Book 1 of the Dutch Civil Code in Original Language

[4] See, for example, the results of a qualitative preliminary study
into the situation of transgender people in the Netherlands: Rutgers WPF
(Utrecht), “Freedom and Visibility: Qualitative Preliminary Study of
Transgender People and Safety” (“Vrijheid en Zichtbaarheid:
Kwalitatief Vooronderzoek naar Transgenders en Veiligheid”), February
2011.

[5]Instituut
voor de Gelijkheid van Vrouwen en Mannen (Brussels), “Living as a
Transgender Person in Belgium: Mapping the Social and Legal Situation of
Transgender Persons” (“Leven als Transgender in België: De
Sociale en Juridische Situatie van Transgender Personen in Kaart
Gebracht”), 2009. The most recent figures for the Netherlands (also incorporating
Flanders, the Flemish-speaking region of Belgium) date back to 1997, with 16
percent of transsexual people having attempted at least once to commit suicide,
while a 1990 study found that 21.4 percent of transsexual people in the
Netherlands had tried to commit suicide at least once. See Paul Vennix,
Transvestites in the Netherlands and Flanders (Travestie in Nederland en
Vlaanderen) (Delft: Eburon, 1997), p. 357, and references therein.

[6] Rutgers Nisso Groep (Utrecht, the Netherlands), “Transgender
People and Employment: An investigation into the job situation of transgender
people in the Netherlands and Flanders” (“Transgenders en Werk: Een
Onderzoek naar de Arbeidsituatie van Transgenders in Nederland en
Vlaanderen”), May 2010, http://www.rutgersnissogroep.nl (accessed April
22, 2011), pp. 80-81.

[10]COC, “Opstelten Makes Pledge about Safety Gays”
(“Opstelten Doet Toezegging over Veiligheid Homo’s”), March
3, 2011, http://www.coc.nl/dopage.pl?thema=any&pagina=viewartikel&artikel_id=4063
(accessed March 20, 2011). The promise was repeated in
a letter from the State Secretary for Security and Justice to the Transgender
Netwerk Nederland, dated May 31, 2011, http://www.rijksoverheid.nl/ministeries/venj/documenten-en-publicaties/kamerstukken/2011/05/31/b-transgender-netwerk-nederland-herziening-artikel-28-boek-1-bw-26600.html
(accessed August 9, 2011).

[19]Transsexual people who do not have Dutch nationality but who have
legally resided in the Netherlands for at least one year immediately preceding
their application to the court are also eligible to apply to have their birth
certificates amended: Civil Code, art. 28(3).

[27] As an indication of these risks, Dr. M.A.A. van Trotsenburg,
director of the gender team at the Free University Hospital in Amsterdam, told
Human Rights Watch that for trans men there is up to a 40-50 percent chance of
complications in relation to urethra-lengthening. Human Rights Watch
interview with Dr. M.A.A. van Trotsenburg, Amsterdam, April 5, 2011.

[28] Email communication from Dr. van Trotsenburg, director of the
gender team at the Free University Hospital in Amsterdam, to Human Rights
Watch, June 5, 2011.

[38] Failure to ensure that this is the case would impose a
disproportionate burden on a person “in one of the most intimate areas of
private life”: see European Court of Human Rights, Van
Kück v. Germany, no. 35968/97, Judgment of 12 June 2003, paras. 77, 82; and L.
v. Lithuania, no.
27527/03, Judgment of 11 September 2007, para. 59, available at http://www.echr.coe.int.Thomas Hammarberg, commissioner for human rights at the Council of
Europe, deems the European Court of Human Rights to have set clear standards on
the requirement that SRS be publicly funded or covered by insurance plans; see
“Discrimination on Grounds of Sexual Orientation and Gender Identity in
Europe,” June 2011,
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf (accessed June
29, 2011), p. 109. Also commenting on the fact that many countries do not
provide publicly funded SRS, or only offer it partially, he states, “This
is clearly against the standards set by the European Court of Human
Rights.” See Thomas Hammarberg, commissioner for human rights, Council of
Europe, “Human Rights and Gender Identity,” issue paper, July 2009,
https://wcd.coe.int/ViewDoc.jsp?id=1476365 (accessed April 4, 2011), p. 27.

[41]The best interest of the individual is particularly relevant in
relation to the health of children and adolescents, in accordance with Article
3 of the Convention on the Rights of the Child, but it is a relevant and
applicable human rights norm in relation to all forms of imposed treatment
(see, for example, European Court of Human Rights, H.L. v. United Kingdom, 45508/99 (2004), ECHR 471; Glass v. United Kingdom, 61827/00 (2004), ECHR 102). The right to the highest attainable
standard of health under international law requires medical services to be
respectful of medical ethics, scientifically and medically appropriate and of
good quality. (See UN Committee on Economic, Social and Cultural Rights,
“Substantive Issues Arising in the Implementation of the International
Covenant on Economic, Social and Cultural Rights,” General Comment No.
14, The Right to the Highest Attainable Standard of Health, E/C.12/2000/4
(2000), http://www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En (accessed
August 9, 2011).) To be medically appropriate, treatment should follow an
individually prescribed plan.

[42]World Medical Association, International Code of
Medical Ethics, adopted October 1949 (amended August
1968, October 1983 and October 2006),
http://www.wma.net/en/30publications/10policies/c8 (accessed June 29, 2011).

[44]Thomas Hammarberg, commissioner for human rights, Council of
Europe, “Forced Divorce and Sterilisation: A Reality for Many Transgender
Persons,” August 31, 2010,
http://commissioner.cws.coe.int/tiki-view_blog_post.php?postId=74 (accessed
April 8, 2011).

[48]Human Rights Watch interview with Marc (pseudonym), Amsterdam,
March 29, 2011. The reference is to the Yogyakarta Principles on the
Application of International Human Rights Law in Relation to Sexual Orientation
and Gender Identity. For further discussion of the Yogyakarta Principles, see
chapter IV.

[58]Convention
on the Recognition of Decisions Recording a Sex Reassignment, International
Commission on Civil Status (ICCS), Convention No. 29, signed September 12,
2002; entered into force March 1, 2011. The ICCS is a 16-member,
inter-government institution, with all its members drawn from Europe except Mexico
which joined in 2010. It was founded in the Netherlands in 1948 and has its
seat in Strasbourg, France. Its aim according to its rules is “to
facilitate international co-operation in civil-status matters and to further
the exchange of information between civil registrars.” See Information Note Prepared by the Secretariat General, April 2011,
http://www.ciec1.org/CIEC-note-information-ENG-avril2011.pdf (accessed August
9, 2011).

[59] ICCS, Convention on the Recognition of Decisions Recording a Sex
Reassignment, art. 1. The fact that the convention starts from the premise that
mutual legal recognition of gender identity would only be applicable to persons
who have undergone SRS is inconsistent with human rights standards on the
rights to personal autonomy and physical integrity.

[60]ICCS, Convention on the Recognition of Decisions Recording a Sex
Reassignment, Explanatory
Report.

[65]In Spain transsexual
nationals can obtain legal recognition of their gender identity without having
to meet an infertility requirement (see Chapter IV). Therefore transsexual
Spanish nationals who have obtained recognition of their gender identity in
Spain could subsequently demand recognition of their gender identity in the
Netherlands on conditions that are less demanding than those applicable to
other transsexual people residing in the Netherlands, who must meet the
conditions of article 28 of the Civil Code before they are eligible for legal
recognition of their gender identity. Dutch
transgender people cannot circumvent the requirements contained in the Dutch
Civil Code by seeking recognition of their gender identity in Spain first,
because the Spanish law applies only to transgender people of Spanish
nationality. In contrast, the provisions on recognition of gender identity in
the Dutch Civil Code do not apply exclusively to Dutch nationals.

[74]Unlike in Germany, for example, where by law only those forenames
are allowed which enable the person’s gender to be inferred from their
forenames (an exception is made for Maria, which is allowed as a forename for
men). See Gerrit Bloothooft, “Remarkable Names in the Register of Civil
Status Records (3): ‘We Call Him Maria,’”
(“Opmerkelijke Namen in de GBA (3): ‘We Noemen Hem
Maria’”), Burgerzaken
& Recht, No. 2, February 2008, pp. 39-41.

[75]See the “Questions and Answers” provided by the
government about choosing a forename, at
http://www.rijksoverhied.nl/documenten-en-publicaties/vragen-en-antwoorden/welke-regels-gelden-er-voor-het-kiezen-van-een-vornaam-voor-kinderen-door-ouders.html
(accessed April 12, 2011).

[114]Human Rights Watch interview with Janiek, Amsterdam, March 18,
2011. The training college's decision was prompted by a letter from the
Minister of Education sent to all educational institutions in the Netherlands,
following a decision by the Equal Treatment Commission in the case of Justus
Eisfeld. Mr Eisfeld had demanded a new graduation certificate from the
University of Amsterdam showing his male names following his change of legal
gender identity after he graduated. In November 2010 the Equal Treatment
Commission ruled in Mr. Eisfeld's favor.

[117]Thomas Hammarberg, commissioner for human rights, Council of
Europe, “Human Rights and Gender Identity,” issue paper, July 2009,
https://wcd.coe.int/ViewDoc.jsp?id=1476365 (accessed April 4, 2011), p. 18; and
“Discrimination on Grounds of Sexual Orientation and Gender Identity in
Europe,” June 2011,
http://www.coe.int/t/Commissioner/Source/LGBT/LGBTStudy2011_en.pdf (accessed
June 29, 2011), pp. 85-87. For an overview of the situation in the 27 European
Union member states by the end of 2009, see European Union Agency for
Fundamental Rights (FRA), “Homophobia, Transphobia and Discrimination on
Grounds of Sexual Orientation and Gender Identity: Comparative Legal Analysis,
2010 Update,” 2010,
http://fra.europa.eu/fraWebsite/attachments/FRA-LGBT-report-update-corr2010.pdf
(accessed April 9, 2011), pp. 17-18.

[118]Council of Europe, “Report by the commissioner for human
rights, Mr. Thomas Hammarberg, on his Visit to the Netherlands, 21 - 25
September 2008,” CommDH(2009)2, March 11, 2009,
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1417061 (accessed April 9, 2011),
recommendation 32.

[119]Committee on the Elimination of Discrimination Against Women,
“Concluding Observations, The Netherlands,” CEDAW/C/NLD/CO/5,
February 5, 2010, para. 46.

[120]Council of Europe, “Recommendation CM/Rec(2010)5 of the
Committee of Ministers to member states on measures to combat
discrimination on grounds of sexual orientation or gender identity,”
adopted by the Committee of Ministers on March 31, 2010 at the 1081st
meeting of the Ministers’ Deputies,
https://wcd.coe.int/wcd/ViewDoc.jsp?id=1606669 (accessed April 4, 2011),
Appendix, Section IV, Right to respect for private and family life, Recommendations
20 and 21.

[121]Minister Verhagen gave the speech after accepting the first copy of
the book “Elke Liefde Telt” (Every Love Counts) written by Boris
Dittrich, advocacy director of the LGBT rights program at Human Rights Watch.
Boris Dittrich, Elke
Liefde Telt (Amsterdam: Nieuw Amsterdam, 2009).

[122] Letter of the Minister of Justice, E. M. H. Hirsch Ballin, to the
House of Representatives, June 15, 2009, parliamentary year 2008-2009, 27 017,
nr. 53.

[123] Letter from the Minster of Education, Culture and Science, R. H.
A. Plasterk, to the Speaker of the House of Representatives, October 1, 2009,
reference no. DE/153374.

[126] Hoofdlijnen emancipatiebeleid: vrouwen- en homo-emancipatie 2011-2015,
Kamerstukken II, 2010-2011, 27 017, nr. 74. The
document states, under “Undertakings to Parliament”: “The
Cabinet abolishes the so-called sterilization requirement for changing the
registered sex on birth certificates. The draft law on transsexuality …
is in preparation and will be made available for consultation before the summer
of 2011,” p. 4.

[131]European Convention for the Protection of Human Rights and
Fundamental Freedoms, 213 U.N.T.S. 222, entered into force September 3, 1953,
as amended by Protocols Nos 3, 5, 8, and 11 which entered into force on
September 21, 1970, December 20, 1971, January 1, 1990, and November 1, 1998,
respectively. See, for example, European Court of Human Rights, X and Y v. The
Netherlands, no. 8978/80, Judgment of 26 March 1985, available at http://www.echr.coe.int, para. 22 and European
Court of Human Rights, Pretty
v. United Kingdom, no. 2346/02, Judgment of 29 April
2002, available at
http://www.echr.coe.int, para. 61.

[136] Administrative High Court (Verwaltungsgerichtshof), no.
2008/17/0054, judgment of February 27, 2009,
http://www.ris.bka.gv.at/Dokument.wxe?Abfrage=Vwgh&Dokumentnummer=JWT_2008170054_20090227X00
(accessed April 12, 2011). See also Rechtkomitee Lambda, “Austrian
Administrative High Court lifts Mandatory Surgery for Transsexuals,”
press release April 28, 2009, http://www.RKLambda.at (accessed April 12, 2011).
Austria has had no specific law to provide for legal recognition of gender
identity for transsexual people (a new law is now in preparation); applications
for legal recognition of gender identity must be made using an administrative
procedure rather than a judicial one.

[137] See, for example, European Court of Human Rights, O’Donoghue
and Others v. United Kingdom, no. 34848/07, Judgment
of 14 December 2010, available at http://www.echr.coe.int, para. 84; Frasik v. Poland, no. 22933/02, Judgment of 5 January 2010, available at
http://www.echr.coe.int, para. 90.

[140] Protocol 12 of the ECHR simply provides that: “The enjoyment
of any right set forth by law shall be secured without discrimination on any
ground such as sex, race, colour, language, religion, political or other
opinion, national or social origin, association with a national minority,
property, birth or other status.” It was ratified by the Netherlands on
July 28, 2004. Protocol No. 12 to the 1950 European Convention for the
Protection of Human Rights and Fundamental Freedoms, E.T.S. 177, entered into
force April 1, 2005.

[141]More information about the legal frameworks in each of the 27
European Union member states can be found in the country background studies
that were prepared for a 2010 report by the European Union Agency for
Fundamental Rights (FRA): “Homophobia, Transphobia and Discrimination on
Grounds of Sexual Orientation and Gender Identity: Comparative Legal Analysis,
2010 Update,” 2010,
http://fra.europa.eu/fraWebsite/attachments/FRA-LGBT-report-update-corr2010.pdf
(accessed April 9, 2011).

[156]Yogyakarta Principles on the Application of International Human
Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007,
http://www.yogyakartaprinciples.org (accessed April 3, 2011).

[157] The 2006 meeting of experts was sponsored by the International
Commission of Jurists and the International Service for Human Rights. See
International Commission of Jurists, “Sexual Orientation, Gender
Identity and International Human Rights Law,”
Practitioners Guide No. 4 (Geneva: ICJ, 2007), http://www.icj.org (accessed
April 20, 2011), p. 4.

[158]See, for example, Navanethem Pillay, UN High Commissioner for Human
Rights, “Ending Violence and Criminal Sanctions Based on Sexual
Orientation and Gender Identity: Statement by the High Commissioner,”
September 17, 2010,
http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=10717&LangID=E
(accessed May 6, 2011); and Thomas Hammarberg, commissioner for human rights,
Council of Europe, “Human Rights and Gender Identity,” issue paper,
July 2009, https://wcd.coe.int/ViewDoc.jsp?id=1476365 (accessed April 4, 2011),
p. 14.

[159]Statement by H.E. Mr. Maxime Verhagen, Minster of Foreign Affairs
of the Kingdom of the Netherlands, 7th session of the Human Rights Council,
Geneva, March 3, 2008, AVT08/BZ89826,
http://www2.ohchr.org/english/bodies/hrcouncil/7session/hls/Netherlands-E.pdf
(accessed April 3, 2011). In two policy documents, the previous government
announced that it would use the Yogyakarta Principles to guide its
international policy to protect the rights of gay men and lesbian women. These
policy documents made no specific reference to the need to bring Dutch
legislation into line with the Yogyakarta Principles. Ministry of Education,
Culture and Science, “Simply Gay: Policy for the Emancipation of Lesbian
Women and Gay Men 2008-2011” (“Gewoon Homo Zijn: Lesbisch en Homo
Emancipatiebeleid 2008-2011”), The Hague, November 9, 2007, p. 20; and
Ministry of Foreign Affairs, “Towards a Dignified Existence: A Human
Rights Strategy for Foreign Policy” (“Naar een Menswaardig Bestaan:
Een Mensenrechtenstrategie voor het Buitenlands Beleid”), The Hague,
November 2007, p. 58.

[161] Sexual and Gender Identity Disorders Work Group, “P 01 Gender
Dysphoria in Adolescents or Adults, Proposed Revision, updated May 4,
2011,”
http://www.dsm5.org/ProposedRevision/Pages/proposedrevision.aspx?rid=482
(accessed May 8, 2011). The proposed diagnosis requires: “A marked
incongruence between one’s experienced/expressed gender and assigned
gender, of at least 6 months duration, as manifested by 2 [footnote
omitted] or more of the following indicators …” Note 4
explains: “The 6 month duration was introduced to make at least a minimal
distinction between very transient and persistent GI [gender identity]. The
duration criterion was decided upon by clinical consensus. However, there is no
clear empirical literature supporting this particular period (e.g., 3 months
vs. 6 months or 6 months vs. 12 months). There was, however, consensus among
the group that a lower-bound duration of 6 months would be unlikely to yield
false positives.”

[168] Human Rights Watch interview with Dr. M.A.A. van Trotsenburg,
director of the gender team at the Free University Hospital, Amsterdam, April
5, 2011, and Human Rights Watch interview with Prof. Dr. W.C.M. Weijmar
Schultz, director of the gender team at Groningen University Hospital, April
15, 2011.

[169] Email communication from Dr. van Trotsenburg, director of the
gender team at the Free University Hospital in Amsterdam to Human Rights Watch,
June 5, 2011.

[175]Yogyakarta Principles on the Application of International Human
Rights Law in Relation to Sexual Orientation and Gender Identity, March 2007,
http://www.yogyakartaprinciples.org (accessed April 3, 2011).

[176]A third method of addressing the situation of
gender variant people which has been put forward is to do away with sex
registration altogether. (See, for example, the manifesto published by the
feminist network of one of the political parties in the Netherlands,
GroenLinks, in March 2011, arguing that possibilities should be explored for
abolishing the legal distinctions between people of different genders, and for
the state to stop registering people’s sex. Feministisch
Netwerk GroenLinks, “Obligatory information? An appeal to explore the
possibilities for abolishing sex as a juridical distinction”
(“Verplicht veld? Pleidooi voor verkennen van
mogelijkheden voor afschaffen van geslacht als juridisch onderscheid”),
March 2011, http://femnet.groenlinks.nl/files/verplicht_veld.pdf (accessed May
20, 2011). See also Marjolein van den Brink, “About the generally held
conviction that people belong either to the male or the female sex”
(“Over de algemeen aanvaarde opvatting dat personen hetzij tot het
mannelijke hetzij tot het vrouwelijke geslacht behoren”) in Vrouw en Recht: De
Beweging, De Mensen, De Issues (Amsterdam: 2009).) The theory of this approach is that as the state would no longer
make any legal distinctions between people on the basis of gender, whether
male, female or something else, therefore there would be no need for a specific
framework for legal recognition of transgender people’s gender identity.
However, there is no basis in current international human rights law for
demands that states do away with sex registration.

[180] In New Zealand transgender people have the option of applying for
a passport with an X as the gender marker. Government of New Zealand,
“Information for transgender applicants,” http://www.passports.govt.nz/Transgender-applicants
(accessed June 18, 2011).

[184] European Court of Human Rights, Johnston and others v.
Ireland, no. 9697/82, Judgment of 18 December 1986; see
also European Court of Human Rights, Abdulaziz, Cabales and Balkandali v. United
Kingdom, nos 9214/80; 9473/81; 9474/81, Judgment of 28
May 1985, available at http://www.echr.coe.int.